HKSAR v. CHAN KA CHUNG

DCCC 981/2020

[2022] HKDC 25

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 981 OF 2020

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REASONS FOR SENTENCE

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1.  D1 Chan Ka Chung pleaded guilty before me to 2 charges (Charges 1 and 2)  of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210; and one charge (Charge 3)  of Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.

2.  Particulars of Charge 1 are that he, together with the original D3 He Jifei, on 5 August 2020, in Hong Kong, having entered as trespassers part of a building known as Shop No 258, 2^nd Floor, Hsin Kuang Centre, No 120 Lung Cheung Road, Wong Tai Sin, Kowloon, stole therein 112 boxes of toy figures.

3.  Particulars of Charge 2 are that he, together with the original D2 Yung Ki Cheung, on 9 August 2020, in Hong Kong, having entered as trespassers part of a building known as “Big Bear”, Ground Floor, Nos 201-203 Castle Peak Road, Cheung Sha Wan, Kowloon, stole therein 74 boxes of toy figures, one cup, one Bluetooth headset and one bag.

4.  Particulars of Charge 3 are that he, on 23 April 2021, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by D1

Charge 1

5.  The claw-machine shop subject of Charge 1 (“Shop 1”)  was closed because of Cap 599F.  PW1 the person-in-charge put cordon poles at the entrance to bar entry.  All the machines nonetheless were in operation.  In the morning of 5 August 2020, PW1 returned to Shop 1 and found locks to 6 out of 17 machines were prized, and 112 boxes of toy figures to the total value of about $34,200 were missing.  Police report was made.

6.  What happened was that at about 4:50 am that day, D1 drove a car carrying D3 to outside the building at which Shop 1 was located.  Later two other persons got on board.  Sometime later, D1 and D3 and two others (all in masks)  were inside Shop 1.  D1 and D3 broke open the claw machines with a tool and stole the toy figures.  D3 left Shop 1 with 2 black plastic bags.  D3 then returned to Shop 1 empty handed and left again with 4 bags in his hand.  At about 5:35 am, D1, D3 and 2 others returned to the car and placed the bags into the trunk.  D1 left.  D3 drove the car away.

Charge 2

7.  The claw machine shop subject of Charge 2 (“Shop 2”)  was closed because of Cap 599F.  The rolling gate of the shop was lowered.  All the machines were nonetheless in operation.  In the small hours of 9 August 2020, PW4 and PW3 the persons in charge separately checked the CCTV of Shop 2 with their mobile phones and saw 2 males prizing open the machines.  The case was reported to the police.

8.  When police arrived, they found D1 and D2 there.  They were arrested.  Several bags of stolen toy figures were found in the vicinity and seized by the police.

9.  What happened was D1 and D2 entered Shop 2 through the door of the rolling gate at 3:05 am on the same day.  They then wandered inside the shop and tampered with the claw machines, and stole boxes of toys.  Shortly after 3:47 am, D1 was seen alighting a vehicle parked in the vicinity.  He then picked up a blue object from the driver of a nearby vehicle before re-entering Shop 2 with D2 again.

10.  The items listed in the charge to the total value of about $23,100 were found missing.

Caution

11.  Under caution at the scene, D1 admitted he went to Shop 2 to steal with D2; he had opened the locks to the claw machines with keys.

12.  During a subsequent cautioned VRI, D1 stated:-

(a)  He was at Shop 2 with D2, who was also arrested at the scene; they took a taxi from Kwun Tong and went to Shop 2; he stole the boxes of toy figures from the claw machines; and

(b)  He used a skeleton key, which was given by his friend in Kwun Tong, to open the lock of the claw machines; his friend had given them (him and D2)  a reward of $1,000 for stealing the toy figures; he stole about 80 boxes of toy figures; he encountered no difficulties in entering Shop 2 because it was not locked.

Charge 3

13.  D1 was granted bail by a District Judge on 2 March 2021; he was ordered to attend court on 23 April 2021.  However, D1 did not attend court on the appointed day; an arrest warrant was issued against him by the court on the same day.

14.  On 18 September 2021, a police constable noticed D1 acting furtively on a street in Ngau Tau Kok.  The constable intercepted D1 for an inspection. Upon check, it was found D1 was a wanted person.  D1 was then arrested.

Present admissions

15.  D1 now admits he and D3 have stolen the items listed in Charge 1.

16.  D1 now admits he and D2 have stolen the items listed in Charge 2.

17.  D1 now admits he failed to surrender to custody without reasonable cause on 23 April 2021.

Criminal records

18.  D1 has 6 previous convictions 4 of which are for Theft Ordinance offences; of those 4, the last three were burglaries for which D1 was sentenced on 19 September 2017 to a total of 28 months’ imprisonment.

Antecedents

19.  D1 is aged 35 (33-34 at the time of the offences), educated to secondary level, was a decoration worker; and he was last discharged from prison in July 2018.  D1 is single and was residing in Shatin with mother and two elder brothers.

Mitigation

20.  Mr Chan Siu Ming of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

21.  D1 has a daughter (aged 5)  born of the co-habitation with a girlfriend.

22.  The guideline sentence for non-domestic premises is 2 ½ years’ imprisonment.  It is submitted that the burglary in the instant case may not be the worst of its kind; that the value of goods stolen was relatively not great; that the stolen property of the second charge was recovered by the police.

23.  The reason for D1 committing the offence subject of the third charge is that he appreciated he would be detained for a reasonably long period of time; as such, it would deprive him of seeing his young daughter again.  It is submitted that it was because of his love for the daughter that he chose not to attend court on the appointed date.  D1 asks for a lenient sentence on this charge.

24.  Mr Chan acknowledged the presence of the aggravating factor of acting in concert.  He also recognized that in respect of Charges 1 & 2, D1 had not pleaded guilty at the first available opportunity; he submitted the court has a discretion in reducing the discount that would otherwise be given to D1.

25.  The most significant mitigation is D1’s pleas.  The court is urged to consider totality and to pass the most lenient sentence possible.

Sentence

26.  I have considered all of the mitigation submissions.

27.  Before sentencing, I have made reference to the sentences on Charges 1 & 2 passed on D3 and D2 respectively on 23 April 2021.

28.  The two burglaries are clearly pre-planned.  The usual starting point of 2½ years will apply to each of the burglary charges.

29.  For the aggravating factor of acting in concert, 3 months will be added to each of those starting points.  There is insufficient material to suggest D1 was the ringleader in the two burglaries.

30.  Although the stolen property under Charge 2 was fully recovered, that is due to the efficiency of the police in arriving at the crime scene speedily.  I will not give D1 any credit on this basis.

31.  For Charges 1 & 2, if D1 had pleaded guilty together with D2 & D3 on the earlier occasion ie on 23 April 2021, he would have been entitled to the full 1/3 discount from the starting point.  However, that is not the case here.  Taking into account D1 was at large for almost 5 months, and the additional manpower needed to re-arrest him and bring him to the court process with an additional Charge 3, I adjudge that he is now entitled to a reduced discount of only about 30% from the starting point (HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 considered).

32.  For Charge 3, I shall adopt a starting point of 6 months.  For his timely plea, D1 shall be entitled to the full 1/3 discount.

33.  There is no other mitigating factor justifying any further discounts.

34.  As a matter of principle, and subject only to totality, the sentence on Charge 3 ought to be made consecutive to the sentences on Charges 1 and 2.

35.  In considering the final sentence, I will of course consider the principle of totality.  In doing so, I shall take into account the two burglaries took place within a space of only 5 days.

(D1, please stand)

36.  For Charge 1, D1 will go to prison for 23 months.

37.  For Charge 2, D1 will go to prison for 23 months.

38.  For Charge 3, D1 will go to prison for 4 months.

39.  I order that 8 months of the sentence on Charge 2, and 3 months of the sentence on Charge 3, are to run consecutively between themselves; and the result is to run consecutively to the sentence on Charge 1.  The aggregate sentence is therefore 34 months’ imprisonment.