HKSAR v. CHAN HIU KIN

DCCC 56/2018

[2018] HKDC 1173

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 56 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Chan Hiu Kin is being charged with 7 charges (Charges 1 to 7) of burglary, all contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and 3 charges (Charges 8 to 10) of theft, all contrary to section 9 of the Theft Ordinance, Cap 210.

2.  Mr Chan pleaded guilty before me to Charges 1, 2, 3, 6, 7, 9 and 10. The prosecution asked that the remaining charges be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.  Particulars of Charge 1 are that Mr Chan, on or about 7 April 2015, in Hong Kong, having entered as a trespasser part of a building known as “Tomato House”, Ground Floor, No 29 Tai Pa Street, Tsuen Wan, New Territories, stole therein one camera and cash of $7,200 Hong Kong currency.

4.  Particulars of Charge 2 are that Mr Chan, on 25 August 2016, in Hong Kong, having entered as a trespasser part of a building known as “Heung Shing Café”, Ground Floor, No 113 Hip Wo Street, Kwun Tong, Kowloon, stole therein one cash register containing cash of $6,500 Hong Kong currency and cash of $1,000 Hong Kong currency.

5.  Particulars of Charge 3 are that Mr Chan, on 19 October 2016, in Hong Kong, having entered as a trespasser part of a building known as “Hung Hom Café”, Ground Floor, Nos 8-10 Man Tai Street, Hung Hom, Kowloon, stole therein cash of $56,000 Hong Kong currency.

6.  Particulars of Charge 6 are that Mr Chan, on 25 January 2017, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, No 67 Yuen Long On Ling Road, Yuen Long, New Territories, stole therein one cash register containing cash of about $6,000 Hong Kong currency.

7.  Particulars of Charge 7 are that Mr Chan, on 25 January 2017, in Hong Kong, having entered as a trespasser part of a building known as Shop C, Ground Floor, Yue Fung Mansion, No 59 Yuen Long On Ling Road, Yuen Long, New Territories, stole therein one cash box containing cash of $4,650 Hong Kong currency.

8.  Particulars of Charge 9 are that Mr Chan, on 25 September 2017, at the lift lobby, 2^nd Floor, Block B, Tuen Mun Industrial Centre, No 2 San Ping Circuit, Tuen Mun, New Territories, in Hong Kong, stole 144 cans of milk powder, property belonging to Chi Man Dispensary Limited.

9.  Particulars of Charge 10 are that Mr Chan, on 28 September 2017, on a light goods vehicle bearing registration mark SM5788, outside Famous Horse Centre, Nos 1145-1153 Canton Road, Mong Kok, Kowloon, in Hong Kong, stole one carton of medicine, property belonging to Fu On Pharma Trading Company Limited.

Admitted facts

10.  The facts admitted by Mr Chan may be summarized as follows.

Charge 1 - Burglary

11.  “Tomato House” was a shop located in Tai Pa Street, Tsuen Wan.  In the morning of 7 April 2015, when the cashier returned to the shop, she discovered that the two drawers had been prized open.  The following property were found missing from the two drawers:-

(a) A camera worth $3,000; and

(b) Cash of $4,400.

12.  In addition, cash of $2,800 was found missing from the cash register.

13.  The switch box of the shutter gate had also been prized open with cost of repair being at $1,000.

14.  The loss incurred by the shop came to around $11,200.

15.  The CCTV footage shows Mr Chan entered the shop under the half-opened roller shutter sometime between 6 and 7 April 2015.  He was seen ransacking the cashier counter area and closing the roller shutter before leaving.

16.  Mr Chan’s palm print was found on a chair insider the cashier counter.

Charge 2 - Burglary

17.  “Heung Shing Café” was a shop located at Hip Wo Street, Kwun Tong.

18.  In the morning of 25 August 2016, when the owner of the café returned, he found the roller shutter had been lifted halfway and the switch box of the shutter had been prized open.  The cash register worth $2,000 together with the cash of $6,500 inside were found missing.  The drawer at the cashier area had been prized open with the cash of $1,000 therein missing.

19.  The loss incurred by the café came to around $9,500.

20.  Mr Chan’s left forefinger print was found on a plastic folder placed inside the drawer.

Charge 3 - Burglary

21.  “Hung Hom Café” was located in Man Tai Street, Hung Hom.

22.  In the morning of 19 October 2016, when a kitchen hand returned to the café, he discovered that the roller shutter had been left open and the switch box of the roller shutter had been prized open.  Cash of $56,000 was found missing from the drawers at the cashier counter.

23.  CCTV footage shows Mr Chan tampering with the roller shutter and entering the café at about 3 am on 19 October 2016.  He was then seen prizing open the drawers at the cashier counter with two screwdrivers and taking away 3 zipper bags of cash and 2 baskets of coins before leaving at 3:07 am.

Charge 6 - Burglary

24.  “Yummy Restaurant” was located at No 67 Yuen Long On Ling Road, Yuen Long.

25.  In the morning of 25 January 2017, when a kitchen hand returned to the restaurant, he discovered that the roller shutter had been left open and the switch box of the roller shutter had been prized open with repair cost of $500.  The cash register worth $1,000 together with cash of $6,000 inside were found missing from the cashier counter.

26.  The loss incurred by the restaurant came to $7,500.

27.  CCTV footage shows Mr Chan entering the restaurant at 4:42 am on 25 January 2017; that he prized open the drawers at the cashier counter using screwdrivers; that he tried to prize open the drawer of the cash register but was unsuccessful; that he carried the entire cash register away and left.

Charge 7 - Burglary

28.  “Tung Gor Dim Sum Restaurant” was situated in Yue Fung Mansion, No 59 Yuen Long On Ling Road, Yuen Long, which was just a few shops’ distance away from the subject premises of Charge 6.

29.  At about 5 am on 25 January 2017, a kitchen hand returned to the restaurant and left the roller shutter half open and the glass door open to allow other kitchen staff to enter before working in the kitchen himself.

30.  At about 7:15 am, a waiter of the restaurant returned and discovered that the drawer section of the cash register containing cash of $4,650 was missing from the cashier counter.  The replacement cost of the drawer was $800.

31.  CCTV footage shows Mr Chan entering the restaurant under the half-open roller shutter at about 5:13 am.  After leaving the premises temporarily, Mr Chan was seen re-entering again shortly after 5:23 am and he was seen tampering with the cash register before leaving the premises for good with the drawer of the cash register.

32.  Mr Chan’s right thumb-print was found on the screen of the cash register.

1^st arrest

33.  CCTV near the subject premises of Charges 6 and 7 captured Mr Chan leaving by a private car (“the car”) which was registered under his wife’s name.  It was then discovered that Mr Chan was a police constable who joined the Force in 2005.

34.  Vehicle entrance record of the car park at Mr Chan’s home at a residential estate in Tsuen Wan revealed that the car’s exit and entry times corresponded with the offence times of Charges 2, 3, 6 and 7.

35.  On 6 April 2017, Mr Chan was arrested.

36.  The keys to the car were found in Mr Chan’s trouser pocket.  A search of the car recovered the octopus card used for entering and exiting the said car park.  The following items were also found inside the trunk of the car:-

(a) A black down jacket;

(b) A green cap;

(c) A face mask;

(d) A work glove;

(e) A pair of black plastic-framed glasses worn during the burglary in Charge 6;

(f) Three screwdrivers;

(g) A spanner;

(h) A blue and white windbreaker worn during the burglary in Charge 3;

(i) An orange and black windbreaker; and

(j) A pair of sport pants worn during the burglary in Charge 7.

37.  Movement record shows Mr Chan was in Hong Kong on the offence dates of Charges 1, 2, 3, 6 and 7.

Charge 9 - Theft

38.  At about 3:45 pm on 25 September 2017, a staff member of Chi Man Dispensary Limited placed a trolley of goods, wrapped with plastic tape, at the lift lobby on 2^nd Floor, Block B of Tuen Mun Industrial Centre, pending delivery.

39.  At about 6 pm, he returned and discovered 12 cartons containing 144 cans of milk powder (valued at $29,844) missing.

40.  CCTV footage shows Mr Chan walking to the staircase at G/F of the building and emerging with a trolley loaded with some cartons at 5:46 pm that day.  He was seen again at 6:06 pm returning to the staircase with an empty trolley and eventually leaving with a trolley loaded with some cartons at 6:19 pm.

Charge 10 - Theft

41.  In the afternoon of 28 September 2017, a delivery worker parked his light goods vehicle (“LGV”) outside Famous Horse Centre located in Canton Road, Mong Kok.  The staff of Fu On Pharma Trading Company Limited then loaded five cartons of medicine onto the rear compartment of the LGV.

42.  When the delivery worker was reloading the cartons to the rear passenger seats of the LGV, he left the rear compartment door open.  He then discovered one carton containing 141 boxes of various medicine (valued at $19,177) missing.

43.  CCTV footage shows Mr Chan lingering around the building and taking away the carton from the LGV.

2^nd arrest

44.  Mr Chan was arrested again on 3 October 2017.

45.  CCTV footage retrieved from Mr Chan’s residential estate shows that at the offence times of Charges 9 and 10, Mr Chan had already driven his car out. Furthermore, he was seen to be wearing the same clothes as those worn by the suspect in Charges 9 to 10 whose movement was captured by the CCTV installed at the crime scenes.

Criminal record

46.  The agreed criminal record shows Mr Chan was of clear record at the time of the offences but has acquired a record of 3 convictions for Attempted fraud on 30 August 2018 for which he was sentenced to a total of 4 months’ imprisonment.

Antecedents

47.  The agreed antecedents statement shows Mr Chan to be aged 35 (31 to 34 at the time of the offences); that he received associate degree level education after which he joined the police force as a constable but was interdicted since 6 April 2017.

48.  He is currently serving a sentence in Stanley Prison.  The Defence told me he will be released on 22 September 2018.

49.  Mr Chan is married with 2 daughters aged 4 and 1.

Mitigation

50.  Mr Clement Lau of counsel mitigated on behalf of Mr Chan.

51.  The following is a summary of the mitigation submissions.

52.  Mr Lau submitted a bundle of 12 mitigation letters (without English translation) written respectively by Mr Chan himself, his family members, colleagues and a religious deacon.  In brief, they spoke of his remorse, his good personality as a husband, father, son, brother, and colleague.  In particular, letter no 5 by Mr Chan’s team leader Mr Ng spoke of the many achievements he made during his time in the force; indeed, Mr Chan would have been promoted to a Sergeant but for the arrest for the burglary offences.

53.  Mr Lau submits that the only reason that Mr Chan committed these offences is that the latter found a wrong way to solve his financial problem. It was submitted that he spent beyond his means having to take care of his own family and aged parents beside paying mortgage and car instalments.

54.  At the time of the first arrest, he was also arrested for the 3 attempted fraud offences details of which are that he failed to disclose other loans when applying for police credit union assistance.

55.  Although he was a police officer when committing the present offences, there is nothing to show that he made use of his status in committing them.

56.  Mr Lau submits that Mr Chan is remorseful, reflected by his pleas, and by full restitution to the victims of the charges to which the pleas relate. Mr Lau further submits that Mr Chan will surely lose his stable job and benefit and will suffer more in prison because of his status.

57.  Mr Lau also submits that Mr Chan is not a professional burglar and the offences were not at an organized level.

58.  Mr Lau conceded that the offences subject of Charges 9 and 10 were committed while Mr Chan was on police bail and was being interdicted.  Mr Lau submits that Mr Chan’s financial problem has been solved with help from the elder brother.

59.  Mr Lau urges the court to take into account totality and to bear in mind that Mr Chan is serving a sentence for crimes committed at about the same times as those of Charges 1 to 3.

60.  Lastly, Mr Lau urges the court to impose partially concurrent sentences and a lenient final sentence.

Sentence

61.  I have considered the mitigation submissions made by and the mitigation letters submitted by Mr Clement Lau.

62.  I have read the brief facts of the case for which Mr Chan is currently serving sentence.  I was informed by the prosecution that he pleaded guilty on that occasion too.

63.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2 ½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

64.  The maximum penalty for the offence of theft is 10 years’ imprisonment. There is no tariff sentence applicable to the offence.

65.  Here, I have to sentence Mr Chan for 5 charges of burglary and 2 charges of theft.  They were committed between April 2015 and September 2017.

66.  There appears to be two aggravating factors apart from the obvious one of multiple offences.  They are (a) the fact that Mr Chan was a serving police constable; and (b) that he committed Charges 9 and 10 while on police bail for the burglary offences and was being interdicted by the police force.

67.  I say at once that Mr Chan will lose his stable job and benefit and that he will suffer more in prison are not mitigating factors as he obviously must have had these consequences in mind when he ventured to commit these offences.

68.  For the first aggravating factor, I shall enhance the starting point by 3 months in the case of Charges 1, 2, 3, 6 and 7 and by 1 ½ month in the case of Charges 9 and 10.

69.  For the second aggravating factor, I shall enhance the starting point of Charges 9 and 10 by another 1 ½ month.

70.  For the reason of full restitution, I will knock off 3 months from each of the starting points.  So it works out that in the end, there will be no enhancement of the starting points.

71.  The offences occurred at different places and at different times although I note that the offences subject of Charges 6 and 7 occurred in close proximity both as to locus and time.  All the charges should attract consecutive sentences (if only partially) subject only to the principle of totality.

72.  I bear in mind Mr Chan is serving a 4 months’ sentence for 3 charges of Attempted fraud.

73.  If I were to sentence that case together with the present case, and bearing in mind the aggravating factors and the mitigating factor of restitution have cancelled each other out in this case, I would have adopted a global starting point of 4 years 9 months’ imprisonment, after considering totality.

74.  I shall adopt a starting point of 2 ½ years’ imprisonment for each of the 5 burglary charges.  I shall adopt a starting point of 12 months’ imprisonment for each of the 2 theft charges.

75.  Mr Chan pleaded guilty in time and so is entitled to a 1/3 discount in sentence.  There are no other mitigating factors of sufficient weight to warrant any further discount.

76.  The sentence for each charge of burglary is 20 months’ imprisonment.  I order 2 months of each of the sentences for respectively Charges 2, 3, 6 and 7 to run consecutively to the sentence for Charge 1, making an aggregate of 28 months’ imprisonment for the 5 burglary offences.

77.  The sentence for each theft charge is 8 months’ imprisonment.  I order 1 month of the sentence for Charge 10 to run consecutively to the sentence for Charge 9 making an aggregate of 9 months’ imprisonment for the 2 theft charges.

[Mr Chan, please stand]

78.  I further order that 6 months of the aggregate sentence for the theft charges to run consecutively to the aggregate sentence for the burglary charges, making a final sentence in this case of 34 months’ imprisonment for Mr Chan.

79.  I order this sentence of 34 months’ imprisonment to run wholly consecutively to the 4 months’ sentence that Mr Chan is currently serving, making a total of 38 months which is 2/3 of 4 years and 9 months.