HKSAR v. YU TSZ FUNG

DCCC 1051/2020

[2021] HKDC 295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1051 OF 2020

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Reasons for Sentence

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1.  The defendant, Mr Yu, has pleaded guilty to two charges of burglary committed on 14 June 2020 in the Tai Wo Market, Tai Wo Estate in Tai Po.

2.  The facts that he has agreed to show that the burglaries took place at what is described as a fast food stall in the market.  The stall has a rolling gate to secure entry. 

3.  On the evening in question, at 9.15 pm, that is on the 14 June, the stall was left with the rolling gate down but was not locked.  The first of the burglaries occurred in the evening at around 9.54 pm and was seen on a CCTV camera where the defendant was seen to roll up the rolling gate, open a cash register, and then prise open a drawer under the cash register.  Some bank notes and cash in bags were in the drawer.  The defendant was seen to take those monies and then put them back in the drawer, then leave the stall and return to his home.  The defendant returned later that evening and returned to the stall and it would appear that on this occasion the defendant actually took the money.

4.  When the victim returned to the stall, he found that $23,000 inside the cash register and the drawer had gone missing, and it would appear that, from the defendant’s admission, he took that money. 

5.  The defendant was arrested on 18 June.  At that time, he said he was short in cash.  He knew there was money at the stall and stole the money from the stall out of greed. 

6.  In a later video-recorded interview, he made the same admission that he was short of cash and stole the money.  He said he opened the cash register by guessing the numeric code.  He stole the money from the cash register and the drawer.  The money had been spent.

7.  The defendant admitted that, in respect of the 1st charge, he entered as a trespasser and attempted to steal and, secondly, in respect of the 2nd charge, that he entered as a trespasser and then stole, but it would appear that the monies concerned are the same in respect of both charges.

8.  The defendant is aged 26.  He has a criminal record involving offences of dishonesty in 2015 but no similar convictions. 

9.  As far as his background as put forward in mitigation is, he was born in Hong Kong; he is single but he has a girlfriend; he worked as initially an air-conditioning apprentice and then an air-conditioning mechanic with a reasonable income of 11 to 12 thousand dollars per month.  His mother has had serious medical problems, including surgery at the Kwong Wah Hospital. 

10.  The purported reason given by the defendant for his involvement in these offences is a shortage of money for various medical expenses involved in his mother’s illness and he had contributed towards them and said that he faced financial difficulties for these general daily expenses because of contribution to his family and for his mother’s medical treatment. He decided to enter the stall and steal the money out of greed. 

11.  The defendant cooperated with the police and made the admissions after arrest and showed remorse.

12.  In terms of mitigation, the defence asks that the court see this as an opportunistic not a professional burglary.  The gate itself was not locked, so access could fairly easily be gained to the stall, and the defendant faces two counts of burglary, both cases at the same place on 14 June 2020, involving the same stall because the defendant entered the same stall twice within a fairly short period of time.  The monies were not taken on the first occasion but were taken when the defendant re-entered the stall after about some half an hour later.  The defence asks that the court recognise the chronological sequence in determining the sentencing of the defendant.  It is clear that the defendant acted alone with no accomplices.  No tools or equipment were used too in the course of the burglary.

13.  It is common ground in terms of the approach to sentencing that this is a non-domestic premises burglary.  The starting point for sentence for a non-domestic premise burglary for a person of clear record after trial would be one of 30 months’ imprisonment.  That sentence would normally be reduced by one-third for the defendant’s plea of guilty.

14.  The starting point of 30 months’ imprisonment can be increased if there are any aggravating factors in this case. I have already indicated that I do not consider the defendant’s previous convictions to be an aggravating factor in this case.  It would appear from the facts admitted that there are no other aggravating factors the court needs to consider. 

15.  Similarly, as far as the mitigating factors, clearly, the only actual mitigating factor in this case is the defendant’s plea of guilty.

16.  In determining the starting point for sentence, as I have indicated, that normally, that in the normal course of events, a starting point of 30 months’ imprisonment is imposed for a non-domestic premises burglary. 

17.  The defence makes the point that the defendant in this case was what would be described as an opportunistic burglar rather than a professional burglar.  However, the burglary itself did involve the entry of a private premises and did involve the entry of a premises protected by a roller shutter, and also the taking of the money involved the prising of drawers and the like.  So I consider that, even though there is an element of this being an opportunistic burglary, it is not sufficient to reduce the actual starting point of sentence below the normal 30 months imposed for a burglary.

18.  Taking that starting point and reducing the sentence for the defendant plea of guilty, that leads to a sentence on each charge of 20 months’ imprisonment. 

19.  The offences were committed at different times, although at the same location, so it is possible for these sentences to be served consecutively.  In my view, to serve them consecutively would lead clearly to an excessive sentence.  Furthermore, it is clear in this case that we are dealing with, effectively, one transaction where the defendant steals the money and then makes away with it, although, in order to do so, he entered the stall on two occasions. 

20.  I will treat this as one transaction and order that the sentences of imprisonment be served concurrently, leading to a total overall sentence of 20 months’ imprisonment.