HKSAR v. MA MING HANG

DCCC1403/2009 & 73/2010
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. DCCC1403/2009 &
73/2010 (Consolidated)

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Reasons for Sentence

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1.  The Defendant pleads guilty to two counts of burglary.  At about 0345 hours on 22 November 2009, a team of police officers were on-board a police vehicle travelling in the Shau Kei Wan area when they saw the Defendant pushing a trolley with a few packs of orange juice and frying pans.  Feeling suspicious, the police officers intercepted the Defendant for enquiry and requested for a search.  The police officers searched the trolley and found eight frying pans and six boxes containing 144 bottles of orange juice. 

2.  Upon questioning, the Defendant admitted that he had sneaked into the Fairwood Restaurant (“the Restaurant”) at Hing Tung Estate Shopping Centre (“the Shopping Centre”) in Shau Kei Wan at 1830 hours on 21 November 2009 and stole the trolley, the orange juice and the frying pans from the Restaurant.  He then hid them in the rear staircase of the Shopping Centre.

3.  At 0215 hours on 22 November 2009, the Defendant returned and took the stolen goods away.  He planned to sell the stolen goods but was intercepted by the police.  The police officers arrested the Defendant for burglary.  Under caution, the Defendant admitted that he had stolen the goods for resale since he had been unemployed for three months. 

4.  At 0640 hours on 22 November 2009, the Defendant was escorted back to the Shopping Centre to provide further details of the crime.  Under reminded caution, the Defendant admitted that, at about 1830 hours on 21 November 2009, he sneaked into the storeroom of the Restaurant via the rear entrance.  He then stole the goods and hid them under the ground floor staircase at the rear entrance and decided to remove them at night for resale at a later stage.

5.  The above facts formed the basis of the 1st charge. 

6.  At about 2300 hours on 18 December 2009, a staff of the Restaurant secured the iron gate at the entrance of the Restaurant and left.  At around 0035 hours on 19 December 2009, a passer-by saw a man climbing into the Restaurant through a window.  The man closed the window after entering the Restaurant.  The said passer-by reported the case to a security guard of the Shopping Centre and a report was made to the police.

7.  In response, a team of police officers arrived and they entered the Restaurant through its windows.  Upon a search in the Restaurant, the police officers found the Defendant hiding inside a refrigerator in the kitchen.  The police officer arrested the Defendant and, under caution, the Defendant admitted that he entered the Restaurant to steal as he was hungry and had no money.  Upon a body search, one of the police officers found a pair of plastic gloves in the right pocket of the Defendant’s vest.  The plastic-type gloves were the type of gloves used by patrons in restaurants.

8.  The Defendant is aged 32.  He has a clear record.  He was born in Guangzhou in the Mainland and came to Hong Kong when he was aged six.  Due to the deteriorating relationship with his family members, he left home when he was 14.  He received education up to Form 1 level.  In January 2008, the Defendant was employed to work at the Restaurant but he was laid off after working there for a few days.  His past employments included construction site casual worker and waiter. 

9.  In mitigation, Mr Ho, solicitor for the Defendant, has urged the court to consider the facts that the Defendant has a clear record, he was cooperative with the police, he committed the offences because he had no money left, the burglaries were of an amateur type with no prior planning, and the Defendant just committed the offence in the 1st charge because he knew that the particular area of the Restaurant was not locked. 

10.  Despite this mitigation, burglary is a serious offence.  Even if the Defendant was subject to severe economic pressure, there was no excuse for him to commit the present offences.  Even for a man with clear record, immediate custodial sentence is the only option.  In particular, the Defendant had made use of the knowledge that he had acquired by working for the Restaurant in committing the offences; and secondly, the offence in the 2nd charge was committed in the early hours of the morning.

11.  The starting point for burglary in non-domestic premises is 30 months’ imprisonment.  I adopt the same starting point for Charge 1.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 20 months’ imprisonment.  For Charge 2, he committed the offence while on court bail for the offence in Charge 1.  This is certainly an aggravating factor and so I adopt a higher starting point of 36 months’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence for Charge 2 is reduced to 24 months’ imprisonment.

12.  Although both offences involved the same burgled premises, there was a time lapse of nearly a month between the commission of the two offences.  The sentence should therefore in principle run consecutively.  However, taking into account the totality principle, I would only order six months of the sentence in Charge 1 to run consecutive to the sentence in Charge 2, making a total of 30 months’ imprisonment. 

13.  I must emphasise that if the Defendant has no clear record, I would have ordered a higher portion of the sentence in Charge 1, say 10 months, to run consecutive to the sentence in Charge 2.  In effect, I am therefore giving the Defendant an additional four months’ discount for his clear record.  This is the sentence I impose in the present case: 30 months' imprisonment.