HKSAR v. LAM SHUN KEE

DCCC 398/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 398 OF 2014

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Reasons for Sentence

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1.  The defendant, Lam Shun-kee, a young man of 25 years old, hitherto of clear record, appears before me facing one charge of burglary.

2.  The particulars of offence complained that the defendant on 20 February 2014, having entered as a trespasser part of a building known as McDonald’s Restaurant, Shop No. 112, the 1st Floor, Citygate, No. 20 Tat Tung Road, Tung Chung, Lantau Island, New Territories, stole therein cash of HK$16,000.  The defendant pleaded guilty to the charge.

3.  The defendant used to be the manager of McDonald’s Restaurant at Shop No. 112, the 1st Floor, Citygate, No. 20 Tat Tung Road, Tung Chung, Lantau Island, New Territories, but he was subsequently transferred to work at another location.

4.  The restaurant in question only had one exit which was the main entrance.  A safe was placed inside the manager office.  There were one CCTV camera outside the restaurant and nine CCTV cameras inside the restaurant.

5.  On 20 February 2014, the nightshift manager of the restaurant calculated that the turnover of the nightshift was $40,701.10 and checked that there was $50,000 petty cash.  All of the money was put into the safe and locked.  The nightshift manager then placed the key of the safe in a box on the desk inside the manager office which was the usual practice of the restaurant.  He also checked the CCTV system which was working properly.  He then locked the door of the manager office and activated the security system.  The nightshift manager left the restaurant at about 4.30 am.

6.  At about 4.44 am, the CCTV system of the restaurant was tampered with.  All recordings were deleted.

7.  At about 6.15 am, the morning-shift manager came back to the restaurant and found that $16,000 cash consisted of two pieces of $1,000 banknote and 28 pieces of $500 banknote missing from the safe.  No signs of ransacking or prising were observed.  The case was reported.

The Arrest of the Defendant

8.  The CCTV footage of the shopping mall revealed that a male (wearing a grey hat, a grey jacket, a pair of dark blue jeans and a pair of white sneakers with a bag) opened the roller gate of the restaurant and entered the restaurant suspiciously at about 4.36 am and left the restaurant at about 4.50 am on 20 February 2014.

9.  Upon viewing the CCTV footage, the manageress of the restaurant, Miss Chan, suggested that the male appearing in the CCTV footage might be the defendant.

10.  On 24 February 2014, DSPC11772 and police party located the defendant in the residence of his girlfriend in Tsing Yi.  Upon enquiry, the defendant denied the offence. The police party accompanied the defendant to his residence in Tsuen Wan for a house search.  

11.  At about 7.55 pm, the defendant admitted the offence inside the government vehicle while they were on the way to the defendant’s residence.  He said, “Ah Sir, I did it not for money.  I only wanted to bring some troubles to Miss Chan (subsequently known to be PW3).  The money is still in my house.”  Hence, DSPC11772 arrested and cautioned the defendant.

12.  During the house search, the police found a comic book on a bookshelf in which there was a red pocket envelope containing 26 pieces of $500 banknote of the sum of $13,000. The police also seized a pair of blue jeans and a pair of sneakers which the defendant admitted he wore at the time of the offence.  The defendant also told the police that he had already thrown away the hat, gloves, jacket, key and bag which he used to commit the offence.

13.  In a subsequent video-recorded interview, under caution, the defendant gave a detailed account of how he committed the offence.  In gist, he told the police that:

(a) On 20 February 2014, he arrived at the restaurant at about 4.15 am. He waited in the vicinity until the nightshift manager left the restaurant.

(b) He pushed open the small box which controlled the roller gate of the restaurant. The small box was not locked at that time. Then he opened the roller gate by pressing the opening button in the small box. After entering the restaurant, he closed the roller gate.

(c) Then he turned off the security alarm by using a security code which he obtained while he was the assistant manager of the restaurant between November 2012 and January 2014.

(d) Then he used the spare keys to open the door of the manager office. He made the spare keys while he was working in the restaurant. Totally there were nine keys for different parts of the restaurant but they did not include the one for the safe.

(e) After entering the manager office, he took the key of the safe from a small box on the desk which was habitually put there for conveniences. Then he opened the safe and randomly took some money from the safe. He did not know how much money he had taken. He then locked the safe and put back the key of the safe to the small box on the desk.

(f) As he was afraid to be captured by the CCTV, he deleted the CCTV footages before he left the restaurant.

(g) Then he locked the manager office and left. He took a taxi to his residence. As he was afraid to be identified, he threw away his jacket, gloves, hat and keys in the rubbish bin near his residence.

(h) He committed the offence in order to give troubles to a manageress of the restaurant, ie Miss Chan, whom he was dissatisfied with.

(i) He subsequently calculated that he had taken $16,000 from the restaurant, including the two pieces of $1,000 banknote and 28 pieces of $500.

(j) He had spent $3,000 and kept the remaining $13,000 in a red pocket envelope which he in turn put in a comic book.

(k) He was wearing a blue jeans and a pair of white‑coloured sports shoes when he committed the offence.

14.  The defendant had a hitherto clear record.

15.  Mr Lam in mitigation told me it was a tragic case in that the defendant is a young man and he had a bright future, but out of immaturity and stupidity, he committed the offence. The defendant is only 25 years old.  He is single.  He lives with his mother in Tsuen Wan.  He was educated up to Form 5. 

16.  Mr Lam told me the defendant came from a broken family.  The father of the defendant deserted the family when the defendant was 16.  Since the father’s desertion, the defendant’s mother had to shoulder up the responsibility of the entire family. She works as an office assistant.  Though the family was in difficult conditions, the defendant did not give up.  He determined to work hard, and he was also determined to provide a better living to his mother. 

17.  He joined McDonald Group in 2007 and was soon promoted to be a deputy manager.  Things were good to the defendant until he was transferred to work at the Tung Chung branch and was placed under the supervision of Miss Chan, the manageress referred to in the Summary of Facts.  The defendant thought that Miss Chan had treated him unfairly as reflected in the appraisal report prepared by Miss Chan. Eventually, the defendant applied to be transferred to another McDonald Restaurant, but that was not the end of the matter.  The girlfriend of the defendant, who also worked under the supervision of Miss Chan, also complained to the defendant that she was treated unfairly.

18.  On the day in question, when the defendant walked past the McDonald Restaurant in question, without thinking much about the consequences, the defendant committed the offence foolishly.  Mr Lam submitted that the defendant committed the offence not for financial gain, and it was not a premeditated burglary.  It was opportunistic in the sense that the small box which operated the roller gate was not locked at the time.  Had it been locked, the defendant would not be able to open and operate the roller gate.

19.  The defendant is extremely remorseful for what he has done.  His employment with the McDonald’s Restaurant was terminated immediately after his arrest.  No longer in gainful employment, he is only able to work now as a casual worker.

20.  Mr Lam submits 12 mitigation letters prepared by the supervisors, colleagues, subordinates of the defendant and also the parents of the defendant as well as the elder brother of the defendant.  In gist, they all plead that the defendant has a good character and he is extremely remorseful for what he has done. Mr Lam submits that whilst the usual starting point for burglary of non-domestic premises is one of 2 and a half years’ imprisonment, in this case, he asks me to consider probation order as an option, and failing that, a suspended sentence.

21.  In my judgment, probation order is not an appropriate sentencing option in this case, and there is no humanitarian ground or exceptional circumstances which can justify the suspension of the imprisonment.  In my judgment, a term of imprisonment is the only appropriate means to deal with the defendant.

22.  As Mr Lam said, for burglary of non-domestic premises, the customary starting point is 2 and a half years’ imprisonment.  But that starting point is only appropriate in the absence of aggravating factors.  In the present case, the defendant had obviously acted in breach of the trust of his employer, ie McDonald Restaurant had placed on him, and that aggravated the seriousness of the offence. 

23.  I have considered the way the defendant committed the offence.  It is true that the small box which operated the roller gate was not locked at the time, but the fact that the defendant carried with him some spare keys show that he was determined to steal from his employer, and he was careful enough to delete all the CCTV footages before he left.  The defendant claimed he stole not for money, but he has spent $3,000 from the money he stole. 

24.  In my judgment, the breach-of-trust element aggravates the seriousness of this case by 6 months. Bearing in mind the breach-of-trust element, I take 3 years’ imprisonment as the starting point.  The guilty plea of the defendant and his clear record entitle the defendant to one-third reduction.  That would bring his sentence down to 2 years’ imprisonment.

25.  As said, there are no humanitarian grounds or exceptional circumstances which can justify the suspension of the sentence.  For the reasons given, I sentence the defendant to 2 years’ imprisonment.