HKSAR v. WONG WAI HO

DCCC 787/2021

[2021] HKDC 1585

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 787 OF 2021

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REASONS FOR SENTENCE

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Charge

1.  The defendant has pleaded guilty to a single charge of burglary (non-domestic premises), occurring on 3 June 2021.  The premises is a BBQ stall named Tai Wo Roast (the Stall)  which is situated at Stall No. 30, Po Tat Market, Po Tat Shopping Centre, Po Tat Estate, Sau Mau Ping, Kowloon. 

Facts

2.  The facts to which the defendant admitted show that the Stall boundary is enclosed with a glass enclosure which has a barrier-free entrance.  Mr. Ng, PW1, worked at the stall daily from 0710 hours to 1945 hours.  On 3 June 2021, he was at work with his two colleagues.  At 1945 hours, PW1 put cash HK$3,000 (Stolen Property 1), into a plastic container (Stolen Property 2), which was then put into a transparent plastic bag  (Stolen Property 3).  The stolen properties were put into a storage container inside a drawer under the chopping board of the table inside the Stall.  PW1 and his two colleagues then left the Stall. 

3.  At 0710 hours on 4 June 2021, PW1 returned to the Stall and found the said Stolen Properties missing from the storage container.  He enquired with his two colleagues and both denied taking them.  A report was made to the police. 

4.  CCTV footages were obtained from Po Tat Market. Upon investigation, the defendant was arrested at his home on 7 June 2021. Under caution, the defendant said that he stole the money from the Stall out of monetary greed.  He said he was wrong and he could give the money back.

5.  Upon search, the police seized the black wallet (Exhibit 1), containing $1,580 (Exhibit 2, part of the Stolen Property), from the defendant.  The apparel, blue T-shirt, blue jeans and black shoes (Exhibits 3 to 5)  worn by the defendant in the commission of the offence were also seized from the defendant’s home. 

6.  A record of interview was taken from the defendant who under caution admitted, inter alia, that:

a. he was buying dinner at Po Tat Market around 2015 hours on 3 June 2021;

b. he lost a lot of money in horse betting recently and therefore went to the Stall and stole HK$3,000 for self-use;

c. he had been a part-time staff at the Stall for five days in mid- 2020 and had seen the staff put money inside a plastic container into a transparent plastic bag and put it into a storage container under the chopping board;

d. at the time he walked past the Stall after buying dinner and found no one inside, the lights were switched off and the Stall was not locked. He then went inside to see if there was any money and stole $3,000 and went back home;

e. he had thrown Stolen Properties 2 and 3 away;

f. he had spent half of Stolen Property 1 on horse betting and the remaining money had been seized by the police; and

g. he admitted wearing Exhibits 3 to 5 when he committed the offence.

7.  CCTV footages first captured the defendant wearing a mask inside Po Tat Market at around 1953 hours on 3 June 2021 where he was seen walking around the market in the vicinity of the Stall.  The defendant then entered the Stall at 2014 hours and left at 2016 hours.  He was inside the Stall for about a minute and 10 seconds.

8.  The defendant entered the Stall as a trespasser, and stole $3,000, one plastic container and one plastic bag.  

Previous Criminal Conviction

9.  The defendant does not have any criminal record.

Antecedent

10.  The antecedent statement was read into the record by Mr. Sean.  In gist, it was said that the defendant was born in the Mainland in July 1959.  He received education up to the level of primary school in the Mainland.  He is married and residing with his wife with two sons aged 21 and 24.

Mitigation

11.  In mitigation, Mr. Leung submitted that the defendant aged 62, is currently unemployed.  He had once worked as a BBQ cook at various BBQ meat shops but was unable to find work after November 2020 due to COVID-19 pandemic.  At that time his monthly salary was around $20,000 to $25,000.  He was the financial pillar of the family, but now his wife and his elder son take care of the family and the defendant’s mother-in-law who is living in the Mainland. 

12.  Mr. Leung also submitted that the defendant had hydrocephalus in January 2014.  As a result, the defendant is required to attend regular follow-up consultation.  He also has past medical history of hypertension and diabetes (see Dr Sha’s medical report dated 2 November 2021).  Mr. Leung also submitted the United Christian Hospital report to show that he has cancer. 

13.  Turning into the mitigating letters, the defendant’s wife describes that her husband is now very remorseful.  She hopes that the court would give him a lenient sentence because he is diagnosed with cancer and he had an operation in November 2021.  Mr. Hung of Potat Society Affairs Association states that the defendant lives in Po Tat Estate and is a hard-working man.  He committed the present offence because of financial stress. 

14.  In respect of the present offence, Mr Leung stated that the defendant:

•  has pleaded guilty to the offence hence saving court’s time and resources, and this shows that he is remorseful;

•  he cooperated with the police during investigation;

•  he has a good background and a clear record;

•  he has diabetes and recently been diagnosed of colon cancer;

•  he lost his job because of COVID-19 pandemic and therefore he is under financial pressure;

•  he committed the offence out of greed;

•  the offence was not pre-meditated; and

•  no forcible entry was involved and no one got injured during his commission of the offence.

15.  Mr. Leung makes references to HKSAR v Sim Ka Wing (unreported, CACC 450/2000, 31 May 2000).

Reasons for Sentence

16.  I have carefully considered everything said on behalf of the defendant by Mr. Leung.  This is a non-domestic burglary. As rightly submitted, the correct starting point for a single burglary of commercial premises committed by a first offender of full age where there is no aggravating or mitigating feature is 2 years and 6 months’ imprisonment.  In HKSAR v Sim Ka Wing, Keith JA said in paragraph 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 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……”

The starting point to be adopted

17.  The aforesaid sentencing guidelines apply to the present case.  However, the defence has submitted to the court that this case more closely resembles what may be described as a sneak thief burglary and refers the court to the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259.  It has been said that the BBQ meat stall is barrier-free and the defendant was able to walk into the Stall without using violence.  As such, a lower starting point is appropriate for an opportunistic burglar who walks into an open premises to steal whatever he can find. 

18.  In the Summary of Facts, the defendant admitted under caution that he was at Po Tat Market to buy dinner.  There is nothing to contradict this piece of fact.  Besides, I note that he lives nearby (Po Tat Estate).  I accept that in the course of buying dinner, the defendant went inside the Stall to steal.  It is akin to an opportunistic burglar and the defendant made no forcible entry to the Stall.  As such, I am prepared to adopt a lower starting point for sentence, i.e., 25 months’ imprisonment instead of the usual 30 months’ imprisonment for non-domestic burglary.

19.  The defence has also submitted that the present case is not the typical breach of trust case where the offender has been entrusted by the employer with money or valuables (See: page 5, Sim Ka-Wing).  Instead, the breach of trust was described as the use of knowledge acquired while working at the offence location.  Mr. Leung stated that the defendant (i)  had only worked at the Stall part-time for five days and had seen the staff keep cash in the stall overnight; (ii)  he did not know if this practice was a routine procedure; (iii)  he did not have absolute knowledge the staff would keep cash overnight on that evening and so he simply went there to see if there was any cash.  Against such a background, Mr. Leung said although this type of breach of trust warrants a further enhancement of the starting point, the increase should only be modest, if at all.

20.  Again, the defendant admitted under caution that he had been a part-time staff working at the Stall and had seen the staff put money inside a plastic container into a transparent plastic bag and put it into a storage container under the chopping board of the table.  I find that the defendant did use the knowledge he acquired (i.e. where the cash was kept)  while working at the Stall and went straight to steal the money therein on the material day.  It is noted that he spent around one minute in the Stall and took the money away.  As accepted by the defence that this warrants an enhancement of the starting point, and I therefore enhance the starting point for 2 months. 

21.  The starting point now becomes 27 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentences to 18 months’ imprisonment.

22.  Mr. Leung further submits that the defendant being 62-year- old with the potential of rapidly declining health (diabetes and cancer)  and no prior criminal record may be considered as a mitigating factor.  He refers to R v Tsui Lai Ying & Others, [1987] HKLR 857. 

23.  Firstly, the Court of Appeal has indicated on numerous occasions that a defendant’s clear record as a mitigating factor is usually subsumed within the one-third discount for a timely plea.  See HKSAR v Chan Wang Kwok (unreported, CACC 39/2004, date of judgment 14 May 2004). 

24.  In respect of his health condition, I note the following sentencing principles laid down by the Court of Appeal.

25.  In Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31, Li CJ said that:

“16. Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity……”

26.  In R v Ho Mei Lin [1996] 4 HKC 491, Nazareth VP said:

“6. ……It is well-established that ill health is not normally a reason for reducing a proper sentence.”

“7. In R v Suen Shek, Cr App 317/1987, which was a case in which the appellant was suffering from terminal cancer, it was said: “It is our decided view that in cases of this nature where convicted defendant is said to be ill, the exercise of clemency is for the executive and not for the Courts......”

“8. In R v Yuen Siu Wah and Another, Cr App 438/1987, what Silke VP said was to the same effect: “Ill health is not a matter for mitigation of a perfectly proper sentence though it may well be a matter for the Executive in relation to a consideration of that sentence if it is brought to the attention and deserves such consideration.’”

“10. Finally, in R v Wong Sik Yuen, Cr App No. 2/1991, ……this court said this: “However as this Court has said on other occasions, and we again reiterate, that, except in the rarest cases, a prisoner’s medical condition is not a matter this Court considers to be within our province when the sentence is a perfectly proper one, but is for the Executive to consider.”

27.   The case Tsui Lai Ying relied upon by the defence is not comparable to the present factual situation.  There the appellant, aged 60, was sentenced for offences of conspiracy to traffic in dangerous drugs.  The court said that the sentence of 20 years’ imprisonment would mean her eventual release when she was close to the age of 80.  It would further mean that the sentence of her might lead to the possibility of death in the course of it being served.  It is against such a background that the court as an act of mercy, reduced said sentence to 16 years’ imprisonment.  The situation here is totally different. 

28.  In light of the aforesaid, I will not further reduce the sentence for the defendant’s present health condition, which in the given circumstance does not amount to a valid mitigating factor, and I am sure that he will receive proper medical treatment while in prison should such a need arise. 

29.  Mr. Leung then invited the court to consider imposing a suspended sentence on the defendant whose mitigating factors put forward, as he described, are sufficient to demonstrate exceptional circumstances, especially his recent diagnosis of cancer.

30.  I have borne in mind what was said by the Court of Appeal in SJ v Wade Ian Francis (unreported, CAAR 1/2015, date of judgment 5 February 2016).  Having considered all the circumstances of the commission of the offence and that of the defendant, I come to the conclusion that it is not an appropriate case to impose a suspended sentence.

Conclusion

31.  The defendant is sentenced to 18 months’ imprisonment.