HKSAR v. SZE KIN KUEN

DCCC 69/2019

[2019] HKDC 1017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2019

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty today to a charge of burglary of non-domestic premises, being a warehouse for “Royal Legend” restaurant at 1st Floor, Golden Court, No 22-52 Electric Road, Causeway Bay and was so convicted.

Facts

2.  Around 6 pm on 5th September 2018, the manager of the restaurant in question learnt that the lock of the warehouse of the restaurant was broken and that 16 cans of canned abalone belonging to the restaurant had gone missing.

3.  CCTV installed at the rear lane of the restaurant captured the defendant entering the warehouse shortly before and leaving the warehouse with a large black bag. 

4.  Defendant was the son of a cleaner working for the restaurant.

5.  Defendant was later arrested.  Under caution, he admitted that he committed the burglary and he stole the canned abalone from the restaurant.

6.  In a subsequent video recorded interview, the defendant admitted under caution that he entered the warehouse by pushing the door with force and that he took the 16 cans of abalone which was later sold to an unknown person for $500.

Criminal record

7.  Defendant has seven previous convictions, two of which related to dishonesty and the last one being in September 2013 for which he was sent to DATC.  That was his fourth stay at the DATC, while the first stay being in October 2000.

Mitigation

8.  Defendant is aged 46.  He is single. He separated from his wife in January 2018.  Their two daughters now live with the wife.  He used to work as a construction site worker until March 2019, earning about $7,000 a month. 

9.  It was submitted by defence counsel that the defendant has been a drug addict for seven to eight years until he was detained in Lai Chi Kok Reception Centre for this case. 

10.  It was also submitted on his behalf that as the defendant had pleaded guilty at the earliest opportunity and had co-operated with the police, he should be entitled to one-third sentencing discount. 

11.  It was also said that the defendant committed the present offence merely to obtain money to purchase dangerous drug.

Discussion

12.  In passing sentence, this court was carefully considered all that was said on behalf of the defendant.  Whilst there is no previous conviction relating to burglary, there are two convictions relating to dishonesty. 

13.  It is well established that the appropriate sentencing starting point for burglary of non-domestic premises, in the absence of aggravating or strong mitigating factors, is that of 2½ years’ imprisonment[1].

14.  This court accepts that in the present case the defendant had acted alone, and that no tools were used in breaking open the door to the warehouse. The defendant just used great force to push open the door. 

15.  There is absence of sophistication in the commission of the offence.  There is also lack of planning in the commission of the offence. 

16.  The value of properties stolen is not big; the same is only sold for $500. 

17.  No one is expected to be within the warehouse at the time. 

18.  The criminal record of the defendant is not particularly impressive, particularly in view that there are two previous convictions relating to dishonesty.  This Court is willing not to treat the same as aggravating feature.

19.  It is very sad that one has to send defendant, who looks perfectly strong and healthy, to prison for a substantial period for only several cans of canned abalone, when it is easy for him to earn the same amount of money just by working even for a day in a construction site as a casual worker. 

20.  It is clear that the commission of the present offence stems entirely from his drug addiction problem and that, unless he quit his habit, it can be expected that he would go in and out of prison for the rest of his life.

21.  Having considered in particular the lack of sophistication and the use of tools in the commission of the offence and all that was said on his behalf, the Court is willing to adopt a lower sentencing starting point than 2½ years, namely 2 years and 3 months.

22.  Defendant is entitled to full one-third sentencing discount for his early guilty plea.  He is therefore sentenced to 18 months’ imprisonment for this charge.  It is hoped that he would, on release from prison, quit his habit.