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DCCC 425 & 505/2017 (consolidated)
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 425 & 505 OF 2017 (consolidated)
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| Before: |
HH Judge Douglas T.H. Yau |
| Date: |
20 September 2017 at 3:34 pm |
| Present: |
Mr. Phil Chau, Counsel on fiat, for HKSAR |
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Mr. Godwin Chan of M/s Godwin Chan & Co, assigned by DLA, for the Defendant |
| Offences: |
[1] & [2] Burglary (入屋犯法罪) |
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Reasons for Sentence
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1. The defendant pleaded guilty to 2 counts of burglary.
Summary of facts
2. The two burglaries in charges 1 and 2 were committed on 18th March and 17th April 2017 respectively.
The 1st burglary
3. Mr Tsang and Mr Wong were chefs at Gathering Kitchen, a restaurant situated on the mezzanine floor of number 35 Portland Street in Yau Ma Tei.
4. The restaurant has a storage room that is not secured with any locks. Access to the room is through two doors in an area reserved for staff use.
5. On the day of the first burglary, the chefs left their bags on a shelf inside the storage room before attending to their duties. Mr Tsang arrived at 10am while Mr Wong arrived at 11am.
6. At around 9pm, Mr Tsang checked on his bag and found it missing. He informed Mr Wong about it. Upon checking, Mr Wong’s bag was also gone.
7. Mr Tsang lost RMB100, 5 house keys and a pair of glasses. Mr Wong lost $100, a HSBC passbook, 4 house keys and a medical card.
8. CCTV captured the defendant entering the storage room at 3:13pm and leaving just 2 minutes later. The defendant was not an employee of the restaurant.
9. A report was made to the Police and officers were dispatched to the restaurant to view the CCTV footage.
10. On the following day, the defendant was identified by a patrolling Police officer as the person in the CCTV while he was at the junction of Ngo Cheung Road and Ferry Street. The defendant was intercepted and arrested.
11. Under caution, the defendant admitted to stealing the two bags and asked for a chance. He claimed that he had used all the money and had thrown away the bags together with the personal items inside.
The 2nd burglary
12. The defendant committed the burglary in the 2nd charge one month after the 1st burglary.
13. Mr Chan was a chef at Great Feeling Restaurant, situated at number 182 Woosung Street in Yau Ma Tei.
14. Just as the victims in the 1st charge, Mr Chan had left his rucksack inside the storeroom of the restaurant before starting his shift at around 10am on the day of the 2nd burglary.
15. Mr Chan went back to collect his rucksack at around 10:05pm but found it missing. CCTV footage captured the defendant entering the storeroom at 8:41pm and leaving with Mr Chan’s rucksack.
16. Mr Chan found his rucksack at the rear lane of number 119 Woosung Street, but his belongings inside were all gone.
17. A report was made to the Police and officers were dispatched to view the CCTV footage.
18. 15 days later on 2nd May, the defendant was intercepted by a patrolling Police officer at Dundas and Reclamation street as the person depicted in the said CCTV footage. The defendant admitted under caution that he stole the rucksack out of greed and that he had no money.
Previous convictions
19. The defendant has 11 convictions from 9 court appearances. Prior to 2015, most of the convictions were for offences involving violence.
20. The defendant was convicted of 3 charges of Theft (shoplifting) on 27th November 2015 and was sentenced to detention at the DATC by a magistrate.
21. The defendant was next convicted of theft (shoplifting) on 19th December 2016 when he was given a 14-day sentence that was ordered to be suspended for 2 years.
22. He was sentenced on 11th February 2017 for yet another offence of theft and was given another 14-day sentence that was ordered to be suspended for 12 months. This sentence was to be served consecutively to the earlier one.
23. The defendant had, therefore, committed the present offences while the two suspended sentences were still in effect.
Mitigation
24. The defendant is 28, married and with two young children. His parents are 49 and 52. The defendant is the sole bread winner of the family.
25. The defendant was educated up to Form 4 level in Hong Kong. He was working as a casual construction site worker earning $20,000 per month prior to his arrest.
26. The defendant committed the present offences because of his heavy financial burden. I was also told that he had taken some drugs before the commission of the offences, but Mr Chan stressed that the defendant knew exactly what he was doing when he went inside the storerooms to find something to steal.
27. Mr Chan pointed out that there had been no use of force to gain entry to the premises. There was no planning and the execution of the burglaries was not sophisticated. The value of the stolen property was minimal. It is Mr Chan’s submission that they were just ‘walk-in’ burglaries.
28. Mr Chan invited the court not to activate the suspended sentences because the theft offences are of a different nature to the present burglary offences.
Sentencing guidelines
29. It is trite law that, for a first offender of full age, the burglary of a non-domestic premises would attract a starting point of 30 months’ imprisonment, subject to further consideration of any aggravating or mitigating factors[1].
30. It is Mr Chan’s submission that the burglaries were opportunistic crimes and warranted a reduction of sentence from the starting point.
Opportunistic burglar
31. Both burglaries involved the storage area in restaurants. There is no evidence that the locks to the doors of either of the storerooms had been tampered with.
32. I have looked at the photos showing the surroundings of both the storage areas.
33. In the case of the 1st burglary, the defendant had entered a corridor from the alleyway that would lead up to the unlocked door of the storage area. The door to the storeroom is visible from the entrance to the corridor and it is just a short distance from there.
34. In the case of the 2nd burglary, the storeroom’s door opens directly into the alleyway. It is a smaller storeroom and one can have a full view of the inside of the storeroom while one stands in the alleyway with the door opened.
35. The scenario suggested by Mr Chan that the defendant had just walked into the unsecured storage rooms to find something to steal is not implausible.
36. There is no reason why I should not sentence the defendant on the basis that these are what the Court of Appeal had labelled as ‘walk-in’ burglaries in the case of HKSAR v Cheung To Ming, CACC 406/2005.
37. I find, however, that the particular circumstances of the commission of the burglary in Cheung To Ming differed with the defendant’s situation in our present case.
38. There the appellant stole two packets of instant noodles, which he then cooked and consumed before leaving. Furthermore, the Court of Appeal had dealt with the appellant’s case on the basis that he had walked into the premises at some stage after someone else had broken into the premises.
39. In our present case, the defendant did not show such desperation and the facts tend to suggest that the defendant had deliberately targeted restaurant store rooms to see if there was anything to steal.
40. Be that as it may, the defendant will still be dealt with on the basis that they were walk-in burglaries, it will just be the case that the reduction of sentence from the starting point will not be as generous as in the case of Cheung To Ming.
Aggravating factors
41. Although the defendant has a few previous convictions, none of them are similar to the present offences.
42. Having said that, his last conviction was on 11th February 2017, which was only 35 days before his commission of the 1st burglary in charge 1. I find that this is an aggravating factor. For this aggravating factor, I will enhance the sentence in charge 1 by 3 months.
Mitigating factors
43. There are no mitigating factors other than the defendant’s timely pleas of guilty.
Sentence
44. I adopt a starting point of 21 months’ imprisonment for both charge 1 and charge 2.
45. The sentence in charge 1 is enhanced by 3 months for the reason given above.
46. The defendant had entered timely guilty pleas and is granted the full one-third discount. The discounted sentence is 16 and 14 months respectively for the two charges.
Totality
47. The two offences were committed on different days, on different premises and involved different victims. They did not arise out of one single transaction.
48. On the other hand, no tools were used in the burglaries, there had been no confrontation with anyone in the process of the burglaries and the value of the property involved were not high.
49. Taking a step back, I order that 5 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, the balance to be served concurrently. The total sentence is, therefore 21 months’ imprisonment.
Activation of the suspended sentence
50. The defendant committed the present burglaries shortly into his suspended sentences. I see no reason why the sentences should not be activated in full.
51. Having reminded myself of the principle of totality, I order that the total of 28 days’ imprisonment be served wholly consecutively to the 21 months’ sentence in the present case.
52. The final total sentence is, therefore, that of 21 months and 28 days’ imprisonment.
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(Douglas T.H .Yau) |
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District Judge |
[1] R v Wong Man [1993] 1 HKC 80; HKSAR v Sim Ka-wing, CACC 450/2000
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