HKSAR v. CHEUNG KA WAI

DCCC 1048/2020

[2021] HKDC 439

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1048 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 charges of "Burglary". He burgled a store situated at a public market twice within a month. He stole cash in the sum of $15,000 (Charge 1) and a can of beverage (Charge 2).

Summary of Facts

2.  The premises particularized in both charges ("the Store") were situated at Shop S6, 1^st Floor, Shek Wu Hui Market ("the Market").  The Store operated between 6:00 a.m. and 7:00 p.m. selling snacks.

Charge 1

3.  About 6:50 p.m. on 5 July 2020, an owner of the Store (PW1 Madam Poon) closed up for the day.  She secured the doors of the Store before she left. 

4.  About 5:00 a.m. on 6 July 2020, PW1 returned to the Store and discovered that someone had tampered with a lock of the doors.  She also found $15,000 cash missing from a drawer.

5.  CCTV footage revealed that about 8:30 p.m. on 5 July 2020, a male (later identified as the defendant) was wandering around the Market.  About an hour later, the defendant lifted up a curtain covering the entrance of the Store and crawled inside. He left the Store with a red plastic bag about 20 minutes later.

Charge 2

6.  About 6:10 p.m. on 30 July 2020, PW1 secured the doors of the Store before she left for the day.

7.  Later on, a security guard of the Market saw a male (later confirmed to be the defendant) crawling into a curtain covering the entrance of the Store.  He alerted the Police.

8.  About 9:00 in the same evening, police officers arrived and found the defendant inside the Store.  Suddenly, he tried to escape from the scene, but was immediately subdued by the Police.

9.  PW1 soon returned to the Store.  She found a can of lemon tea (valued at $5) missing.

Arrest and admissions

10.  About 9:30 in the same evening, the defendant was arrested for the offence in Charge 2. Under caution, he stated that he entered the Store to take a drink only.

11.  About 1:25 a.m. on 31 July 2020, the defendant was arrested for the offence in Charge 1. Under caution, he claimed that he had no money at that time; he went to steal money from shops in the Market.  He found a store which was not locked.  He lifted up a curtain to enter that store and took away some money.  He did not count the cash and had spent it all.

12.  In his 2 video recorded interviews (VRIs), the defendant made admissions about each offence and gave more details.  In his 1^st VRI regarding Charge 2, he admitted that after crawling into the Store, he intended to wait until when there were fewer people at the Market before stealing money from the Store.  He took a can of lemon tea from a rack and drank it.  He used his mobile phone whilst waiting.

Mitigation & Sentence

13. The defendant is 29 and has a clear record. Defence counsel Mr. Lee informed me that upon completing F.5, the defendant started working as a kitchen apprentice in a fast food corporation. In 2014, he was recruited by a catering group as an Assistant Chef. He was promoted to Chef in 2017 earning $20,000 per month. Unfortunately, the defendant was laid off in April 2020 owing to the pandemic.

14. In mitigation, Mr. Lee submitted that prior to his arrest, the defendant could only secure a catering job on an on-call basis working 2 to 3 days a week with a daily wage of $300. He committed the present offences out of dire financial difficulties since he had to support his parents and younger stepsister (a tertiary student). Mr. Lee stressed that the defendant did not prize open any locks or doors of the Store; nothing was damaged in the course of entering the Store.

15. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I have viewed photographs of the Store. It was small in size and I accept that the degree of "breaking in" was minimal. Although the Store hardly had any security measures, it did not in any way serve as an invitation for the defendant to go in to steal. On the other hand, even if I accept that there is a slight element of "opportunistic burglary", committing 2 burglaries against the same premises within a month is certainly an aggravating factor[1].

16. After due consideration, I have decided not to raise or lower the starting point. I will adopt the usual starting point of 2.5 years' imprisonment for each charge. With the timely guilty pleas, the sentence is reduced to 20 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 20 months' imprisonment.

17. Bearing in mind the totality principle, I consider a global starting point of 36 months to be appropriate for both charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. Hence, I order 4 months in Charge 2 to run consecutive to the sentence of Charge 1.