HKSAR v. KWONG KWOK PUI

DCCC 1085/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1085 OF 2016

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REASON FOR SENTENCE

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Charge and facts

1.  The defendant pleaded guilty to one charge of burglary of non‑domestic premises took place at a café named Moe Maid Café (the Café) situated at Room B, 5^th floor, Fook Tai Building, Nos. 24-26 Soy Street, Mong Kok, Kowloon.

2.  My NG (PW1) was the manager of the Café and was used to put cash of $2,000 inside a plastic box placed in the bar area. Around midnight on 4 October 2016, after the Café was closed for business, PW2, a part time chef secured the door of the Café with a metal chain and a padlock. PW2 then placed the key on the top of the wooden wall opposite to the Café and left. At about 1345 hours on the same day, Mr Luk (PW3), another part time chef returned to the Café and found the lock of the metal chain opened.  He also found that the $2,000 cash placed inside the plastic box missing.

3.  Upon viewing the CCTV system installed inside the Café, PW1 saw an unknown male (later confirmed to be the defendant) was ransacking the Café at about 0418 hours on 4 October 2016.

4.  Upon arrest and under caution, the Defendant admitted that he had used a key placed on the top of the wall opposite to the Café to enter the café and took away the HK$2,000 from a plastic box in the bar area. He said he was doing decoration work at Room B of 6^th floor for a friend and was finding some cleaning equipment at the material time when he saw the key.  He stole the HK$2,000 out of greed and spent all the money already.

Mitigation

5.  The defendant is a 39-year-old divorcee without any children. He was earning $15,000 per month as a decoration working and giving $3,000 to his elderly parents per month. He has a criminal record of 15 previous convictions, most of them being theft related offences.

6.  The mitigation was basically in line with what was said by the defendant under caution in that he was working upstairs at the material and just it happened he noticed the key when he was looking for the broom. Mr Wong, solicitor for the defendant also submitted a number of authorities trying to persuade the court that the defendant was just an opportunist and urged the court to take a lower starting point.

Sentence

7.  It is well established that the appropriate starting point should be 2½ years’ imprisonment for a single offence of burglary of non‑domestic premises by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation.

8.  Mr Wong for defence was trying to persuade the court to take a lower than the usual starting point.  It is noted that although the defendant was arrested on the 6^th floor of the same building and he might be working there at the material time, the facts as showed in the facts of the authorities submitted by defence were very different from the present case.  All the cases submitted by defence either involved vacant or unlocked premises.  Moreover, the stolen properties were of very small amount or even just food and beverage.

9.  In the present case, it was strange that the defendant needed to work at such small hours. Secondly, from the CCTV footage, the defendant was not holding any cleaning equipment when he was returning to 6/F. Thirdly, the premises in question, namely the Café was not vacant and was actually locked. Further, the key though was put outside the premises for convenience was actually hidden on top of the wall opposite to the Café which was a place not easy to be noticed at all.  Last but not the least, the premises were ransacked before the HK$2,000 was stolen by the defendant which was kept inside a plastic box. 

10.  In this connection, I must say the present circumstances were very different from the “opportunistic” scenarios as submitted by the defence.  Having said that, I accept that the defendant was acting alone and the operation was not a well-planned or sophisticated one. The value of the stolen property was not minute but could not be regarded as substantial.  Although the defendant committed a number of theft related offences in the past, I do not consider him as a recidivist of the present offence.

11.  Having considered all the circumstances, I take the usual 2 years and 6 months’ imprisonment as the starting point.  The only effective mitigating factor is his plea of guilty, for which he will get a one-third reduction of his sentence.

12.  The defendant is therefore sentenced to 20 months’ imprisonment.