HKSAR v. HO CHEONG BIU

DCCC 988/2022

[2023] HKDC 1146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988 OF 2022

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REASONS FOR SENTENCE

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1.  In the morning of 21 August 2022, the defendant went to a club only accessible to police officers. Somehow he managed to get in, despite the fact that there were security checks.

2.  He went inside the male changing room therein and stole from the backpack belonging to a club member a cell phone, two Octopus cards, Hong Kong ID card, and a membership card and $2,000 cash.

3.  With the Octopus card, on three different occasion in the same morning, he used it to purchase respectively a bottle of water, 25 packets of cigarettes and made a payment of $124.

4.  After the defendant was arrested, he admitted to have stolen the properties in question and that he had thrown away the cell phone and the Octopus cards after exhausting all the credits therein.

5.  On the basis of the above facts the defendant was charged with and convicted, on his own plea, of one count of burglary and three counts of theft.

6.  The total value of the three counts of theft came up to $1,684. In addition, the victim lost $2,000 cash and his telephone.

7.  As the defendant was not an authorised user of the club, he had entered into it without permission, he was charged with burglary. There are clear authorities to the effect that for burglary of non-domestic premises, the starting point to be adopted should be 30 months. I see no reason to depart from the same.

8.  In respect of the theft charge, the defendant had, on three occasions, used all the money or the credits stored in the Octopus card.

9.  Counsel for defence suggested an arithmetic approach in sentencing: that is measuring the length of a term of imprisonment by reference to the amount stolen. I do not see any reason or any authority that suggests such should be the approach.

10.  What I can see is that the defendant had on three occasions used a debit card stolen by him. Common sense dictates that a similar, albeit shorter, term of imprisonment should be adopted by referencing the sentence for the use of stolen credit cards.

11.  The defence counsel also invited this court to consider suspended sentence without any reasons or rhyme. In my view, counsel, of course, is entitled to make suggestions to the court, but it has to be supported by authorities or at least by common sense, none of which has presented in the submissions.

12.  Having considered the whole circumstances of the case, I consider that the three acts of theft would be considered a continuous act and they warrant a total of 15 months’ imprisonment. Therefore, for each of the theft count should be a sentence of 15 months to run concurrently.

13.  I turn to consider the background of the defendant. The defendant has a total of 25 previous record involving 42 counts. With the exception of four counts, all are related to dishonesty.

14.  Five of the counts are in relation to burglary. In 2019, he was sentenced to 20 months of imprisonment for a count of burglary. He should consider himself lucky that I do not adopt a higher starting point.

15.  Having considered the totality of the sentence, I consider it is appropriate that 6 months from the 15 months of theft should run consecutive to the 1^st count, making a total of 36 months.

16.  At the time of the offences, he was 54 years old. He had some health issues and has unemployed, relying on government subsidies. In all, I do not see any reason to exercise further leniency in view of his background. The only valid mitigation is the fact that he pleaded guilty to all of the charges.

17.  In compliance with the direction of the Court of Appeal, I will therefore reduce one-third of his total sentence down to 24 months, to run immediately.