HKSAR v. TAM KA CHUN

DCCC 1049/2020

[2021] HKDC 513

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1049 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  Full details of the offences are set out in the facts admitted by the defendant.  In summary, this is a burglary case which took place in two non-domestic premises on Wo Yi Hop Road on different dates.

3.  The defendant on two different days, namely 21 May 2020 and 4 June 2020 entered the same Shop ie Shop No 18 (hereinafter called “Shop 18”) to steal cash of HK$20,200 under the 1^st charge and cash of HK$580 under the 3^rd charge, and the defendant on 31 May 2020 entered Shop B (hereinafter called “Shop B”) to steal about 10 keys and cash of HK$2,800 under the 2^nd charge.

4.  Shop 18 was a 24-hour self-service laundry shop.  There was a glass door (hereinafter called “the Glass Door”) without a lock at the entrance to Shop 18. No security guard or staff was hired.

5.  The owner of Shop 18 Ms Tam placed some washing machines and two coin-exchange machines inside Shop 18, and she secured the Coin-exchange Machines with a padlock.

6.  Ms Tam also leased some shop space (hereinafter called “the Shop Space”) to Mr Si.  With Ms Tam’s permission, Mr Si placed a claw machine and a token-changing machine (hereinafter called “the Token-changing Machine”) at the Shop Space.  Mr Si secured the Token-changing Machine with a padlock and would collect the cash from the Token-changing Machine from time to time.

7.  At around 1145 hours on 23 May 2020, Ms Tam returned to Shop 18.  She found prized marks on the padlocks of Shop 18 Coin-exchange Machines, but with no money loss.  As she also found that the padlock of the Token-changing Machine was cut open, she informed Mr Si of the situation.  Upon arriving at Shop 18, Mr Si checked the records of the Token-changing Machine, and found that cash of HK$20,200 were missing from the Token-changing Machine.  The case was reported to the police.

8.  The CCTV of Shop 18 captured that at around 0343 hours on 21 May 2020, the defendant entered Shop 18.  Upon entering Shop 18, the defendant immediately took out a pair of long pliers from his backpack.  He then used the pliers to cut the padlocks of all the machines in Shop 18 one by one.

9.  Eventually, the defendant successfully prized open the Token-changing Machine and stole some cash from the Token-changing Machine.  Before leaving Shop 18, the defendant used a piece of cloth to wipe the handle of the Glass Door.

10.  Mr Si later replaced a new padlock to secure the Token-changing Machine.

11.  Shop B was also a 24-hour self-service laundry shop, and Mr Choi was the owner of Shop B.  Mr Choi placed a coin-exchange machine (hereinafter called “the Shop B Coin-exchange Machine”) and a vending machine (hereinafter called “the Vending Machine”) inside Shop B.  At the back of Shop B, there was an office (hereinafter called “the Office”) with a door (hereinafter called “the Office Door”) secured by a lock.  No customers were allowed to enter the Office.

12.  In the morning on 31 May 2020, Mr Choi returned to Shop B and found that the Office Door was left open.  Prized marks were found on the Office Door, and signs of the Office having been ransacked were observed.  The case was reported to the police.  Upon check, the following items were found missing, namely about 10 keys (hereinafter called “the 10 Keys”) which were previously placed inside a drawer at the Office and cash of HK$2,500 inside the Shop B Coin-exchange Machine and cash of HK$300 inside the Vending Machine.

13.  The CCTV of Shop B captured that at around 0426 hours on 31 May 2020, the defendant entered Shop B via the main entrance.  At around 0430 hours, the defendant prized open the Office Door with the tool taken out from the Grey Bag. At 0436 hours, the defendant walked out of the Office and used keys to open the Shop B Coin-exchange Machine and the Vending Machine.  He then retrieved coins and banknotes from the Shop B Coin-exchange Machine and the Vending Machine.  He put all of these coins and banknotes into the Grey Bag and left Shop B.

14.  In the early hours of 4 June 2020, PC27012 and his party were conducting an anti-crime patrol at Wo Yi Hop Road, Kwai Chung.  At about 0234 hours on 4 June 2020, PC27012 spotted the defendant lingering outside Shop 18 in a suspicious manner.  The police then put the defendant under observation.

15.  After the defendant had entered Shop 18, PC27012 and other police officers closely monitored the defendant outside Shop 18.  Through the Glass Door, PC27012 saw the defendant doing something against the Token-changing Machine with a tool.  Before the defendant tried to leave the scene, the police officers immediately rushed into Shop 18, subdued and arrested the defendant.  The police took the defendant outside Shop 18 for investigation.

16.  The CCTV of Shop 18 captured that, at around 0236 hours on 4 June 2020, the defendant entered the shop and sat on a chair, looking outside through the Glass Door from time to time.  At around 0238 hours, the defendant stood up and walked straight to the Token-changing Machine.  He prized open the padlock of the Token-changing Machine with a screwdriver, and took out some monies from the Token-changing Machine.  He then placed the monies into a cross bag (hereinafter called “the Cross Bag”).  Following that, the defendant used a piece of cloth to wipe the Token-changing Machine.

17.  After arresting the defendant, the police found HK$250 cash (hereinafter called “the HK$250”) on the floor of Shop 18, and HK$110 cash (hereinafter called “the HK$110”) on the ground outside Shop 18.  The padlock of the Token-changing Machine was found to have been prized open.

18.  The police also searched the Cross Bag, and the following items were found inside the Cross Bag, namely cash of HK$220 (hereinafter called “the HK$220”), and two red screwdrivers and a pair of green pliers; and a total of 20 keys, 10 of which were subsequently confirmed by Mr Choi to be the 10 Keys.

19.  The defendant was arrested and cautioned for the 3^rd charge at the scene.  Under caution, the defendant voluntarily admitted that he stole things because he owed a debt to AEON.  When questioned about the origins of the HK$250, the HK$110 and the HK$220, the defendant voluntarily said that he used a red screwdriver to prize open the padlock of the Token-exchange Machine and took out monies from the money-box inside the Token-exchange Machine.   The defendant then put the monies into the Cross Bag. Subsequently, video-recorded interviews were conducted with the defendant.  Under caution, he voluntarily admitted that he was the burglar captured in the footage, and he had disposed of the long pliers he used in committing the offence, and he only stole about HK$2,300 from the Token-exchange Machine and not HK$20,200 as claimed by Mr Si.

20.  Having viewed the screenshots of the CCTV footage for the 2^nd charge, the defendant admitted that he was the burglar captured in the footage, and he used a screwdriver to prize open the Office Door, and took keys from the Office.  He kept the keys with him since then.

21.  The defendant admitted that he used the keys to open two machines and took away around HK$200 from the machines, and he confirmed that the keys found inside the Cross Bag at the time of arrest were the ones he took from the Office, and he had disposed of the clothes worn by him at the time of the offence.

22.  Having viewed the screenshots of the CCTV footage for the 3^rd charge, the defendant also admitted that he was the burglar captured in the footage, and he used one of the red screwdrivers to prize open the lock of the machine, and the green pliers and the other screwdriver carried by him had nothing to do with the offence.  He bought them for work previously.

23.  He further admitted that the HK$250 were taken from the Token-changing Machine, and as to the HK$110 and the HK$220, the defendant was not certain whether they belonged to him or Shop 18.  He believed he brought around HK$100 with him when he left home. 

Criminal records and background of the defendant

24.  The defendant was born in Hong Kong and is now 40 years old.  He completed Form 3 and worked as transportation worker with a monthly income of about HK$12,500.

25.  He is single and in good health without serious illness.  He was living with his girlfriend who suffered from depression.  His parents were divorced for over 30 years and they seldom contact the defendant and his elder sister is married and resided at Shatin.

26.  The defendant was required to support the living expenses of his girlfriend and the son (aged 8) born from his girlfriend and her ex-husband.

27.  The defendant had 8 criminal records with no similar offence and among these convictions, he had 1 conviction involving dishonesty in 2002.

Mitigation

28.  In mitigation, Mr Ma emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

29.  Mr Ma also relied on the authority of R v Wong Man, CACC  372/1992, and pointed out that the sentence of 30 months was set as the starting point for burglary of non-domestic premises for a first offender of full age.

30.  He further stated that in HKSAR v Cheng Wai Kai, CACC  338/2007, the sentencing starting point of 30 months for non-domestic burglary was adopted and a list of aggravating factors were suggested (see paragraphs 14 and 15):-

“14. The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (See R v Wong Man unrep CACC 372/1992)

15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.”

31.  In mitigation, Mr Ma submitted that the defendant became unemployed in April 2020, and was facing financial difficulties.

32.  Mr Ma pointed out that this case involved three burglaries of non-domestic premises.  No person was injured during the process and the items that were stolen were of relatively small value and the defendant is not a professional burglar, and he had no previous conviction of burglary.  Mr Ma further asked the court to take into account of the totality principle when passing the sentence.

33.  Mr Ma also submitted a letter written by the defendant to the court, and in the letter, the defendant asked the court for leniency.

Sentencing considerations

34.  As rightly pointed out by Mr Ma in mitigation, the correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2½ years’ imprisonment.

35.  I consider that a starting point of 2½ years’ imprisonment is appropriate in the present case for each offence.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 20 months’ imprisonment to each offence.

36.  Taking into account of the totality principle, I order that 4 months of 2^nd charge and 4 months of 3^rd charge to be run consecutively to 1^st charge.

37.  There being no further valid mitigating factors justifying further reduction in sentence, as such, the total sentence imposed on the defendant for all 3 charges he pleaded guilty to is one of 28 months’ imprisonment.