HKSAR v. TSE WING KIT

DCCC 1410/2024

[2025] HKDC 1318

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1410 OF 2024

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REASONS FOR SENTENCE

The defendant pleaded guilty to 9 charges of "Theft" (Charges 1 to 8 and 10) and a charge of "Burglary" (Charge 9).

Summary of Facts

2.  The facts of this case are straightforward.  The crimes took place between 26 April and 22 May 2024.  On the respective offence dates, the defendant stole from a total of 10 shops located in Tai Kok Tsui and Mongkok.  In short, he has stolen a total of 10 mobile phones, 1 tablet computer, 2 notebook computers and 2 packs of cigarettes.

3.  The defendant's stealing acts in Charges 1 to 6 and 8 to 10 were captured on CCTV footage.  The shops were mostly located at shopping malls, and a few were situated at street-level premises.  The defendant took away the stolen items when they were unattended.

4.  Regarding Charge 9, the floor of the restaurant was of a different colour from the shopping mall.  There were also curtains to cordon off the restaurant from the mall.  The restaurant was closed at 10:00 p.m. on 21 May 2024 with curtains drawn down.  The stolen mobile phone was placed on the cashier counter next to the curtains.  CCTV footage showed that about 10:05 in the same evening, the defendant, having crossed the boundary of the restaurant, took that mobile phone from the cashier counter.

5.  The Police arrested the defendant in Mongkok on 22 May 2024.  Under caution, he admitted having stolen the items particularized in Charges 1 to 10 and pleaded in the Summary of Facts[1].  Regarding Charge 10, he claimed that he stole the 2 packs of cigarettes for his own consumption.  For the other stolen properties, he claimed having sold them in Sham Shui Po for $2,700 in total.

Mitigation & Sentence

6.  The defendant is 52 and has 14 conviction records, which included 20 "Theft" offences and 1 "Robbery" offence.  Defence counsel Ms. Ho informed me that the defendant is homeless and unemployed, but does not receive social welfare. When I asked how he earned money for food, Ms. Ho informed me that he would take up odd jobs.  Ms. Ho also confirmed that the defendant has no psychiatric or mental disability issues.

7.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. Being a homeless person or not receiving social welfare is not an excuse to steal.

The "theft" charges

8.  The defendant is a repeated offender of "Theft" offences. His most recent conviction was a "Theft" offence[2], for which he was sentenced to 8 months' imprisonment on 8 November 2023.  In other words, he must have committed the present 10 offences shortly after his release from prison. 

9.  In the present case, the defendant acted alone; targeted at unattended mobile phones or tablet computers placed in shops; and committed 9 offences within a month.  In my view, he might have picked the shops at random, but he certainly knew what to steal and had a well thought out plan to steal each time.

10.  According to HKSAR v Tse Kar Hang, Nigel[3], the starting point for stealing an unattended iPad or cell phone from a club house or a hotel reception desk is 18 months' imprisonment[4].  Since the defendant is a recidivist, I would increase the starting point for each charge to 21 months.  With the timely guilty pleas, I sentence him to 14 months' imprisonment each for Charges 1 to 8 and 10.

The "burglary" charge

11.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The same aggravating factors mentioned above for the "theft" charges also exist in this charge.  I accept that the modus operandi of Charge 9 is essentially the same as the other 9 "theft" charges.  It became a "burglary" offence because there were curtains separating the restaurant from the shopping mall.

12.  I am aware of the Court of Appeal's decisions in HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and HKSAR v Sim Ka Wing CACC 450/2000.  I consider a starting point of 18 months' imprisonment appropriate for Charge 9 and will increase it to 21 months to reflect the defendant's repeated offending.  With the timely guilty plea, I sentence the defendant to 14 months' imprisonment for this charge.

Overall sentence

13.  All 10 offences in the present case took place within a month.  The aggregate value of the stolen properties is about $80,000.  Bearing in mind the totality principle, I consider a global starting point of 51 months appropriate and just.  With the timely guilty pleas, the overall sentence becomes 34 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I order the sentences for the 10 charges to run in the following manner :

(i) Charges 2 and 3 concurrent, but 6 months consecutive to Charge 1;

(ii) Charges 4 and 5 concurrent, but 6 months consecutive to Charges 1 to 3;

(iii) Charges 6 to 8 concurrent, but 4 months consecutive to Charges 1 to 5.

(iv) Charges 9 and 10 concurrent, but 4 months consecutive to Charges 1 to 8.

14.  From May 2013 onwards, the defendant has spent most of his time going in and out prison because of repeated "theft" offences.  The court can only do so much in deterring a repeated offender by way of a heavy penalty.  Whilst the sentence must carry a deterrent effect, it cannot go out of proportion.  The defendant is already 52.  To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.