HKSAR v. TSE YEE MING

DCCC538/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 538 OF 2009

--------------------

--------------------

-----------------------------

Reasons for Sentence

-----------------------------

1.  Your counsel is right in saying that it is quite unrealistic to think the court can pass a non-custodial sentence or one of suspended sentence. My hands are tied. There has been well-established guideline for your type of offence. The usual guideline is 2½ years unless there are exceptionally raised circumstances.

2.  I do not regard this as a breach of trust case. It makes people laugh that if I say to you, you are in breach of the trust the employer imposed on you. You are not employed as a caretaker who learned of the secret of breaking into the premises. You were not a cashier who was entrusted to look after the money in the cabinet and the drawer. You were just the chief cook, so to speak, working there, who happened to know that your employer had done nothing to the damaged rolling gate.

3.  You committed the offence, of course, out of greed, which I accept. I have also accepted this is not a premeditated offence. You are just an opportunist who just made use of the opportunity, which was open to you. As a matter of culpability, it is more or less like that of a pickpocket, except that this is a more serious one than pickpocketing. You picked the shop of your employer, and the offence becomes one of more serious type, burglary.

4.  Your reason for committing the offence suggests, I accept, you have a grudge. I would be more understanding if you had no other ways of getting back at your employer for revenge. There are lawful ways, lawful means to have your revenge against your employer. You have told me he had committed numerous offences under the labour law. You could simply make a report to the Labour Department. I do not believe you do not know that. But you want to take the revenge in your own way. You have to face the consequences. This is not a mitigating factor.

5.  And as chief cook, you must know something about the secret of providing wonton noodle at $10 a bowl. You can sell them in your shop in competition, a legitimate lucrative way of getting your revenge, just like what your boss had done, I believe, because there is another Wonton Shing before your boss, the one, the name originally that appeared on the charge sheet, the Chinese character without “land”, another Wonton Shing, which is before your boss.

6.  Put it very simply, there are many ways open to you, legitimate ways available to you to get back at your boss. By reporting to the Labour Department, not only you have done yourself a service; you have done the employees after you a service, a great service.

7.  Yes, I have taken the balance about your family, I mean, your family situation. You are young. I have to give some credit about your family who gave you support by turning up in court. But I have also to keep the balance the other way, looking at your previous record. Of course, you will not be punished more severely because of your past offence. The past offence have already been punished for. What I am saying is that it would reflect, it would discount certain mitigating factors you may have.

8.  There is only one thing. I think you deserve a further remission apart from the one-third because of your frank admission to the police. Apart from your cautioned statement, if you did not admit what you told the police, the evidence against you, I must say, is very weak. The issue of identification and circumstantial evidence are not strong here in this case. But by admitting your offences, you saved a lot of trouble. For saving court’s time, you get one-third of remission. I cannot see any good reason for not giving you a further credit for saving the police’s time in investigating further into your offence. If a defendant should be encouraged to plead guilty by giving him perhaps as much as one-third, I do not see why your cooperation with police should not be recognised by the court in giving you further reduction.

9.  So, to sum up, the positive mitigating factors I think you have, your family support and your cooperation with police and the negative mitigating factors, your criminal record, to sum up, I think I can give you one more month’s remission. So, you go to prison for 19 months.