HKSAR v. CHAU PUI YEE

DCCC 818/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 818 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary and a subsequent three charges of theft.

2.  The facts that she has admitted show that these offences all basically arose out of the same incident.  She was a resident in a flat in Lai Chi Kok in a road in Mong Kok which had been divided into rooms which were rented to tenants.  The defendant was the girlfriend of one of the residents and was permitted to stay in that person’s room. 

3.  Another resident in one of the other rooms had been ill in the afternoon of 29 December 2016.  They went to bed but did not lock the room door.  The resident awoke to find that there was a message on her mobile phone showing her credit card had been used to withdraw money and she found that her black handbag with seven credit cards in it had been taken from her room.  The credit card that had been used to remove money on three occasions are the subject of the three theft charges and the withdrawals of money were in the sums of RMB4,000 and then 5,000 and 500 Hong Kong dollars respectively.

4.  The defendant was subsequently arrested for these offences in May of 2017.  She admitted the offences.  She had seen that the door of the victim’s room was left ajar and then gone into the room and taken away the handbag.  She had taken the credit cards which were inside the handbag, together with a letter from the bank, from the Shanghai Commercial Bank.  Unfortunately for the victim, that letter contained the PIN code of the Shanghai Commercial Bank credit card and then that credit card was used to withdraw the money from the bank on three occasions.  It appears that after that the credit cards had been disposed of; they had been thrown in a rubbish bin.  The handbag had been returned, apparently.

5.  Now, the defendant’s antecedents show that she is a 46-year-old lady, educated to Secondary 3 level and working as a waitress.  She has apparently suffered in the past from tuberculosis.  Her record shows that she has had a problem with consumption of drugs in the past but does not appear to be an addict any more.  She has a son aged 22 years old.  She does not live with her son but she says she contributes towards his welfare and he is currently studying at university.

6.  The defendant has a criminal record dating back to 1994, with some 12 previous appearances in court.  In the 1990s through to about 2007, the defendant was convicted of a number of drug offences and was sentenced to Drug Addiction Treatment Centre on a number of occasions and, in fact, as late as 2015 she was convicted of trafficking in a dangerous drug, for which she was sentenced to 16 months’ imprisonment.

7.  Of late, she has committed a number of offences.  In 2016 she committed an offence of burglary, and for which she was sentenced to 4 months’ imprisonment.  Then in the same year, offence of shoplifting, for which she received a consecutive sentence, 2 weeks’ imprisonment.  In 2017 she committed further offences in about April of that year of theft, making off without payment, for which she was sentenced again to a total of 6 months’ imprisonment, and then on 28 July of that year, 2017, a further offence of theft, for which she was sentenced to 4 months’ imprisonment.

8.  The defendant, since about 2015, or since early 2016, has consistently committed offences of dishonesty.

9.  I turn now to the appropriate sentence for these offences. 

10.  The defendant has pleaded guilty to a domestic premises burglary.  The normal starting point for sentence of such an offence for a person of clear record after trial would be one of 3 years’ imprisonment. The offences of theft for which the defendant is charged involve the use of a credit card account and the use of a stolen credit card, and such offences involving the use of credit cards also can involve starting points as high as 3 years’ imprisonment.

11.  Now, as far as mitigation is concerned, the defendant says through her representative that, as far as the burglary is concerned, it was very much an opportunistic offence.  She saw the handbag and went and took it, and then the thefts, although involving the use of a credit card, involved the fairly modest sums of money and were the letter with the PIN card number, had that not been in the handbag, of course, it would have been impossible to take any money.

12.  As far as other mitigation is concerned, the defendant says that she stole the money in order to assist her son with his expenses and she has recently become involved with the Christian Kan Sun Association in prison and intends to start a new leaf when she leaves prison.

13.  I do consider that these offences should really be looked at as one criminal enterprise.  She burgled the contents of the handbag from somebody in a nearby room and then took the money as a result of that.  Now, because of that, the sentences I will impose on each charge will be served concurrently.

14.  As far as the burglary is concerned, it is said to be opportunistic and does involve walking into a premises.  Of course, the premises that the defendant entered were occupied, so all the hallmarks of an offence of burglary are present in that enterprise, although I note that there was no ransacking or breaking into the premises.  And, nevertheless, the presence of people inside the premises is the factor that often determines that there should be a starting point of 3 years’ imprisonment for a domestic premises burglary.

15.  Also in relation to the offence of burglary, the defendant has a previous conviction - that is an aggravating factor in its own right - and also a recent previous conviction, although I do note the offence was dealt with in the Magistrates’ Court and led only to a sentence of 4 months’ imprisonment, and also the defendant does have a poor record of dishonesty in the recent past.

16.  I have determined that, balancing all those factors, and having regard to the fact the credit card was used to remove money, I shall take a starting point of 3 years’ imprisonment on each charge, reduce that to 2 years’ imprisonment for the defendant’s pleas of guilty. 

17.  I shall order that all sentences to be served concurrently, to a total of 2 years’ imprisonment.