HKSAR v. TAI CHIT FAT KEVIN

DCCC 594/2017

[2018] HKDC 322

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 594 OF 2017

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REASONS FOR SENTENCE

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1.  This is a non-domestic burglary. The defendant pleaded guilty to one count of burglary, contrary to section 11(1)(b) of the Theft Ordinance.

2.  The premises in question are called Chi Wah Learning Commons (hereinafter called the study room) situated on the campus of the University of Hong Kong (HKU) which opens 24 hours a day at the time of the offence providing a place for students to do revision. It is a two-storey building with a reception counter on each floor. 

3.  Access to the study room is controlled by gates on the first floor; the access gates are pretty much similar to those entrance/exit turnstiles at a MTR station except that glass panels are used instead of bars – one way in and one way out, side by side. (See picture in Appendix I)

4.  The study room is open for authorised persons only such as staff and students, who enter from outside must have a valid entry pass to tap onto the sensor at the entrance; while in the reverse direction, i.e. on the way out, the sensor there will be activated by anyone approaching the exit from inside, the glass panels of which will then open automatically.

5.  A student had left her notebook computer unattended in the study room and later discovered that it had gone missing in the morning of 15 February 2017 and the police were notified.

6.  As a matter of fact, the defendant was caught on video surveillance there. The CCTV footages showed that about 7:30 in the morning of 15 February 2017, the defendant was seen walking to the reception counter on the first floor and taking away a bag containing a notebook computer belonging to the student.

7.  Sometime after 10 a.m. the same morning, police officers together with the security manager of the university, having viewed the CCTV footages, walked around the campus to look for the defendant, and eventually located him. The defendant led the officers to the reception counter on the second floor to recover the stolen property.

8.  The defendant was arrested by the police for the offence of theft, and admitted under caution that he had stolen the notebook computer for his own use out of a momentary greed.  

9.  In the subsequent interview with the police, the defendant explained how he entered into the study room – he went in through the exit by activating the sensor there with the movement of his hand in front of it. (As can be seen from the picture – one can easily extend one’s hand to reach the exit sensor from outside)

10.  The defendant, aged 31, single, has no criminal record. The court heard that he graduated from City University majoring in English some years ago and thereafter worked as a clerk in a company for 6 years. At the time of the offence, the defendant had been out of job for 1 ½ years.

11.  Counsel for the defendant said that the defendant missed his college days so much so that he kept going back to the campus of HKU. When asked why he did not go back to City University instead, counsel said the defendant found the place more picturesque.    

12.  In explaining how the defendant came to commit the offence, counsel said the defendant had in fact spent the previous night in the study room doing some reading, then walked around to relax a bit in the morning, and came across the computer in question unattended. Out of a momentary greed, he took it away.    

13.  Walking away with the stolen computer, the defendant soon realized, counsel said, that he had done something very wrong, he got cold feet and put the computer back at a place different from where it was before – he put it at the counter on the second-floor instead.  

14.  Asked why he didn’t put it back at its original spot, counsel said that the defendant was afraid of being seen by the owner with the stolen computer but by putting it in the study room, albeit at a different place, the defendant was hoping that it would eventually return to its owner, because the security guard there might find and return it to the owner in case a missing report was made.

15.  Defence counsel asked the court to consider sentencing options other than prison term by reason of the unusual features of the case plus the fact that, he submitted, it meets all the requirements as set out in the case of Chow Chak Man CACC 447/1998.

16.  I adjourned the matter for 2 weeks for a CSO report and in the meantime, admitted the defendant to bail. The report, however, is not a positive one which does not recommend the defendant do any unpaid work.

17.  In the concluding paragraph of the report, the probation officer wrote: -

“In view of the accused’s lack of determination to start anew as reflected from his failure to attend the social enquiry interview on 12 March 2018, his social withdrawal as well as his prolonged unemployment and limited effort in seeking open employment throughout the past three years, the accused is not considered to be a suitable subject for CSO and is thus not recommended in this case……”

18.  Chance has been given to the defendant but he does not seem to have cherished it. He didn’t even attend one of the interviews with the probation officer who wrote the following in the report:-

“……Regarding his response towards the present social enquiry, the accused failed to turn up for the social enquiry interview with the investigating probation officer on 12.3.2018 and had not initiated any contact with or responded to the phone calls from the latter thereafter. It was not until investigating probation officer’s interview with the mother and the twin brother on 16.3.2018 that the accused was said to be ill on 12.3.2018 and was thus unable to attend the social enquiry interview scheduled on that day……”

19.  Failing to attend an interview through illness is one thing; not keeping the probation officer posted on what was going on is quite another. It is not just a question of courtesy, it shows how much the defendant really cares about this matter of his. The probation officer did suggest the case be adjourned for 6 weeks to obtain the probation officer’s report as well as psychologist’s report on the defendant, but given the attitude of the defendant and the seriousness of the case, I do not intend to squander any more time and resources.

20.  When one looks at the case, it is indeed quite a serious one. The defendant knew very well that the study room was off limits to the public – he’s not allowed to enter without a valid pass. By playing a simple trick – waving hand in front of the sensor - he was like walking through an unlocked door; the defendant, by so doing, defeated the security system of the place.

21.  The valuables likely to be stolen in a study room would be those wallets, iPhones or computers belonging to students.  In Liu Lin Feng CACC 206/2011, the Appellate Court has this to say about iPhones being the stolen property:-

“iPhones and similar third generation telephones not only expensive items, easily sold on and difficult to trace once the SIM cards have been removed, invariably they contain large amounts of data of importance to the owner, data that is both practical and sentimental. Their theft therefore may well put their owners to a high degree of distress and inconvenience.”

22.  The court heard that the reason why the study room was opened around the clock at the time was because it was approaching examination time. The students, without a doubt, would be very busy preparing for the exams at the time; the computers, which might contain coursework materials or other data for examination, would be the tools for their revision. I can’t stress enough how devastating it will be to a student who discovers his computer missing at this time of the year.  

23.  The only point in the defendant’s favour is that he did not take the computer away in the end and had led the police to retrieve it. I accept his assertion that soon after the theft, he abandoned the idea of stealing because he could not go away with a clear conscience.  

24.  There are sentencing guidelines for this type of offence – for non-domestic burglary, and in the absence of aggravating features, the usual term for consideration is one of 30 months.

25.  For the fact that this is a non-domestic burglary, I take 30 months as the starting point, and reduce it by one-third to 20 months to reflect his plea of guilty.

26.  There is no evidence to suggest that at the time when the defendant entered the study room as a trespasser, he had had the intention to steal, which is a Section 11(1)(a) burglary. He was charged with a section 11(1)(b) burglary which means that having entered the study room, whatever the initial intention, he then committed the theft.

27.  Counsel for the defendant has said that the defendant entered the study room the previous night with a view to reading, only chanced upon the computer in question in the morning, and stole it out of a momentary greed. There is nothing to contradict or refute it. That being the case, the court must accept the defence’s account of the incident – that would mean a “short-lived” criminal act on the part of the defendant.

28.  Theft was done and could not be undone, but nevertheless given the defendant’s “short-lived” criminal act, which in my view is something out of the ordinary justifying a further reduction in sentence, I’ll give him a further 5 months reduction.

29.  There being no reason for any further reduction in sentence, the defendant is therefore sentenced to 15 months’ imprisonment.

Appendix1