HKSAR v. NG NGAI SHAN

DCCC 777/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 777 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of burglary, contrary to s 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The facts

2.  The premises involved was a vegetable stall known as “Hop Wai Vegetable Stall” at Shop No 36, Ground Floor, Lucky Market, No 23 Yuk Wah Street, Tsz Wan Shan, Kowloon.  On the evening of 19 July 2014, a worker of the stall, after putting a certain amount of coins and banknotes in 2 plastic sieves and locking them up in the stall’s wooden cabinet, left the stall without completely closing the front gate.  When she returned to the stall the following morning, she found that the padlock of the cabinet had been prized open and the 2 plastic sieves of money together with 2 plastic bags containing cash of about HK$40,000 missing from the cabinet.

3.  Later on in the same day, the stall owner viewed the CCTV footage and found that the defendant had entered the stall empty-handed about 9:30 pm on the night of 19 July 2014 but left the stall with a white bag in his right hand.

4.  The defendant was arrested at his home on 22 July 2014 and admitted under caution that he had entered the wet market in question on 19 July 2014 and found the door of the stall open.  He then entered the stall.  Using a peeler to prize the open the padlock of the cabinet, he then stole the 2 plastic sieves and cash of about HK$20,000.  He claimed he had spent a few hundred dollars of the stolen cash.  The remainder was recovered by the police at his home.

5.  Among the items seized by the police during a search of the defendant’s house were cash of HK$26,482.20, 2 plastic sieves and one invoice.  These items were identified by the stall owner as objects taken from his stall.

Defendant’s background

6.  The defendant is now 36 years old.  He was born in Mainland China and came to Hong Kong when he was 12.  He was educated up to secondary one standard.  He works as a construction site worker on a casual basis.  He is single, living with his parents in a public housing estate in Tsz Wan Shan.

7.  He has 6 previous conviction, spanning 14 years from 1994 to 2008.  The last entry on his criminal record shows that he was sentenced on 14 May 2008 to 2 years imprisonment for attempted burglary.  On the same day, he was sentenced for burglary to 2 years imprisonment, 3 months of which were to run concurrently with the sentence for the attempted burglary.

Mitigation

8.  On behalf of the defendant, Mr Chan pointed out that, while burglary is a serious offence, there were no aggravating factors.

9.  On the contrary, defendant had gone to the market without any plans of committing burglary.  He happened to walk past the market and noticed that the door of the stall was not closed.  Driven by greed, he sneaked into the stall.  The peeler that he used to prize open the cabinet’s padlock was found inside the stall.  He could therefore be described as an opportunistic burglar.

10.  Citing HKSAR v Cheng To Ming, CACC 406/2005, reported in [2006] 2 JKLRD 259, Mr Chan asked the court to consider adopting a lower starting point, and suggested that a starting point of no higher than 18 months imprisonment be adopted.

11.  Mr. Chan also told the court that when defendant took the money from the cabinet, he had no idea how much money there was.  In any event, almost 70% of the money stolen was recovered from defendant’s home.

12.  In his mitigation letter to the court, the defendant says he committed the offence because of financial difficulties.  He asks for leniency from the court.

Sentence

13.  Burglary is indeed a serious offence, the maximum penalty for which is 14 years imprisonment.

14.  The burgled premises in question is a vegetable stall in a wet market, and can properly be described as non-domestic premises for sentencing purposes.

15.  The customary sentence after trial for burglary of non-domestic premises is 2½ years imprisonment: see eg HKSAR v Sim Ka Wing, CACC 450/2000; HKSAR v Khan Asif [2010] 1 HKLRD 404.  Such a sentence is appropriate where there are no aggravating factors.

16.  Regarding situations involving the opportunistic burglar who walks into open premises to steal whatever he can, starting points lower than the customary 2½ years have been considered and applied.

17.  In Sim Ka Wing, cited above, the Court of Appeal said:-

“9. The conventional starting-point of 2½ years imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find…”

18.  In the case of Cheng To Wing, cited above and referred to by Mr Chan in mitigation, the Court of Appeal, having regard to “the most unusual circumstances” in which the appellant committed the offence, adopted a starting point of 18 months to the appellant who had entered a wildlife education centre as a trespasser through its main door which had been left open by others and consumed 2 packets of instant noodles that he found in the kitchen.

19.  In HKSAR v Khan Asif, cited above, the appellant and another man X wandered furtively around a lane.  Lifted by X, the appellant popped his head in through an open window of a go-down for 5-6 seconds. After looking down at X briefly, the appellant repeated these acts again for approximately the same duration before leaving the lane.  After affirming the appellant’s conviction for burglary, in dealing with the sentence, the Court of Appeal substituted a sentence of 18 months imprisonment for the original 2½ years, given “the somewhat unusual facts of this case”.  The Court of Appeal did so on the basis that “there was minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that it was decided then to abandon the escapade.” (at p 414)

20.  I accept the defendant’s claim that he had not gone to the wet market with burglary in his mind.  I also accept that he had not gone there equipped for breaking into premises.  He just went into the stall through its unclosed door, and the peeler that he used in prizing open the cabinet’s padlock was something he found inside the stall.

21.  In light of those facts, he was an opportunistic burglar, and he deserves a starting point which is lower than the standard 2½ years imprisonment.

22.  However, after entering the stall through its open door, the defendant did not just pick up and take whatever he found there.  He went on to use a peeler he found in the stall to prize open the cabinet’s padlock.  From the cabinet, he took away cash totalling HK$40,000.

23.  In terms of what this defendant did after entering the stall, and the value of properly stolen, this case is far more serious than Cheng To Ming and Khan Asif.

24.  His criminal record is another matter that does not work in his favour in the court’s consideration of a starting point similar to the one adopted in Cheng To Ming and Khan Asif.

25.  The defendant has a rather bad record.  Of the 6 convictions recorded against him, 4 of them are for offences under the Theft Ordinance.  His last 2 convictions are for burglary and attempted burglary respectively. By committing the present offence only some 6 years from the date he received his sentences for the burglary and the attempted burglary, the defendant had obviously not learned a lesson, nor had he been sufficiently deterred by those sentences.

26.  Whilst it may be true that about 66% of the stolen cash was recovered, this was due not so much to defendant’s contrition as to the police ability to apprehend this defendant not long after the offence was committed and before the defendant had a chance to dispose of the rest of the stolen cash.

27.  Taking account of the lack of premeditation and the opportunistic aspect of the defendant’s conduct in gaining entry into the stall, I am prepared to depart from the standard starting point of 2½ years.

28.  However, in light of what the defendant did to obtain the money kept in the cabinet, the amount of money stolen, and the defendant’s record, I am prepared to take off 3 months from the standard starting point.  I would therefore adopt 2 years and 3 months as the proper starting point in this case.

29.  The defendant’s plea of guilty in the only other mitigation of substance.  For such plea, he would get a 1/3 discount from the starting point, resulting in a sentence of 18 months imprisonment.