HKSAR v. CHOI HIU HUNG

DCCC 45/2024

[2024] HKDC 1604

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 45 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to an indictment with four charges and they are one of burglary and three of theft. The offence as the indictment relates to were committed in a short compass of time between 2 July 2023 and 6 July with three of the offences being committed it appears on the same day.

2.  As far as the facts that the defendant has pleaded guilty to they are relatively simple. The 1^st charge, the burglary, relates to a premises, a Japanese restaurant in the Grand Plaza in Nathan Road and the victim who was PW1 was on a site visit to that restaurant. He had a rucksack with a laptop inside. After he arrived at the business, he left it on a table. The business opened and the victim returned after the opening of the business at 11.15 to discover that his rucksack, which is described as the stolen property, was missing. The defendant was captured on a CCTV recording.

3.  The 2^nd and 3^rd charges were committed at the same location which is the Kung Pao(?)  Property Agency in Portland Street in Mong Kok. The method of the offence is very similar to the first offence. The two victims, they both entered the premises and left their rucksacks and when they returned they both found that their items had been taken. Again, the defendant was captured on a CCTV camera when entering those premises.

4.  The 4^th charge relates to premises called Rising Aluminium Scaffolding in Mong Kok, Canton Road. This offence occurred on 6 July. The victim went to work, placed her handbag on a table inside the premises and went to the washroom. On returning, she found that her items had been taken. In total, the value of the items in this charge was about $13,500. The defendant was again captured on a CCTV camera.

5.  I am told, it is conceded that in the 2^nd, 3^rd and 4^th charge defendant was wearing a mask at the time. Defendant was arrested on 3 August 2023 and admitted straightaway stealing out of financial hardship. He said he had sold the stolen items at an unknown street stall and used the money on food and his daughter’s medical expenses.

6.  As far as the defendant’s background and antecedents are concerned, he is 48 years old now. He has a, I would call it a checkered work history which I will deal with in a little more detail later. Unfortunately he has a large number of convictions, 58 in total, 3 for burglary quite recently in 2022 and a large number of thefts, 22 of theft and other offences of dishonesty such as deception. The defendant has received substantial prison sentences as well in the past.

7.  As far as the mitigation advanced is concerned, the defendant sets out his desire to turn a new leaf. He has aged parents. He has, as I said, an employment history that involves working for an electronics company, he has also worked in the field of delivery and more recently in the area of construction. Unfortunately while working in construction he received quite a severe injury which appears to mean that due to disability he cannot work in that field anymore. He did receive compensation. He entered a business but that was unsuccessful. Of relevance to the defendant’s background is he is married and has a daughter. The daughter unfortunately suffers from a number of medical conditions such as mental defectiveness and also handicaps. The defendant has sought treatment for her and we can see that in the explanation he gave when he was arrested. His wife has also had medical problems.

8.  In mitigation, it is submitted that all the offences are described as opportunistic. The burglary was committed during the day, they all involve the entering of a premises and taking items therein and walking out again. There is no sophisticated planning, they are basic burglaries. The fact that there was no sophisticated planning can be seen with the ease with which the defendant was eventually apprehended for these offences.

9.  On his personal level, the defendant is, I am told, a responsible father and husband bearing the medical expenses for both his wife and his daughter. The defendant also acted alone. The major aggravating factor in these offences of course his previous criminal record which is a serious aggravating factor and the major mitigating factor the defendant put forward is his admission of the offences at an early stage and his pleas of guilty today.

10.  As far as the 1^st offence is concerned, there is a guideline sentence and these are where the burglary was committed at a commercial premises. The normal starting point for sentence for a person convicted after trial of clear record would be 30 months’ imprisonment. I see no reason to depart from the normal, taking that as the starting point, however, there is an aggravating factor I must take into account, that is defendant’s poor criminal record and previous convictions for the same offence showing the failure in deterrence as far as the defendant is concerned. So on the 1^st charge, I will add a further 6 months to reflect the failure in deterrence in his case and take a starting point of 36 months’ imprisonment. The defendant is entitled to a full one-third discount so the sentence on the 1^st charge will be one of 24 months.

11.  As far as the other three offences, they are of theft, they are all very similar. Again I take an initial starting point of 12 months’ imprisonment on those, add a further 6 months to reflect his poor criminal record and the failure of deterrence in his case. That means the starting point is now one of 18 months. I take again a full one-third discount so on the 2^nd, 3^rd and 4^th charges there will be a sentence of 12 months’ imprisonment on each charge.

12.  And I will bear in mind the overall sentence. It must reflect the nature of the offences and the fact that there is a combination of offences here but they are committed in a relatively short space of time and two of them were committed in fact at the same premises. I shall simply reflect that by ordering that the offences 2, 3 and 4 be served concurrently to one another but consecutively to charge 1. That gives an overall total sentence of 36 months’ imprisonment for these offences.