HKSAR v. CHAN YIN HO

DCCC 233/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2017

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REASONS FOR SENTENCE

1.  Chan Yin Ho you have pleaded guilty to two charges of burglary of storerooms, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by you today.  In summary on 1 January and 9 January this year you burgled the storerooms of the AEON Tuen Mun Store in the Tuen Mun Town Plaza. 

3.  The AEON Store had two storerooms.  Only employees of the AEON Store had authority to access the storerooms.  Notices were displayed at the entrance to the storeroom that customers were prohibited and that employees must display their staff cards in the storerooms.   You were not an employee of AEON. 

4.  On 1 January at 12:14 p.m. you were seen walking out of storeroom 1 carrying a black recycle bag containing Star Wars Lego valued at $2000-$3000. 

5.  At 6 p.m. on 9 January you were seen by Ms Li, staff of AEON, walking around storeroom 2 looking at the shelves.  Ms Li locked the door of storeroom 2 and reported the matter to her colleagues.

6.  The police arrived shortly after and arrested you for burglary.   Under caution and in a subsequent video interview you admitted both burglaries.  You said you stole the toys to sell to earn money to buy food.

Mitigation

7.  In passing sentence, I have carefully considered everything said on your behalf by Ms Lam together with your mitigation letter and letters written by your wife and mother.  I am told that you are determined not to reoffend so you can once again be a good husband and father to your young children.  Your determination to change is shown by your recent support for the organ donation registration scheme.

Starting point

8.  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 2 years and 6 months imprisonment. Lower starting points have been taken where the burglary is said to be opportunistic, for example where someone passes by an open door or vacant premises and steals food or items of little value[2].

9.  You told the police that on the first occasion you entered the storeroom on seeing the door of the storeroom was not properly closed.   This is consistent with the admitted facts that during opening hours the doors of the storerooms were not locked.  On the second occasion you told the police you entered the storeroom by following employees of the store. 

10.  Although the items stolen in the first burglary were not food or items of little value, I accept that the burglary can be described as opportunistic.  In the circumstances I am satisfied a starting point of 2 years imprisonment is appropriate for the first burglary. 

11.  As for the second burglary I do not accept this was opportunistic whereby the starting point should be reduced.  Having succeeded in the first burglary you were no doubt waiting for another opportunity to burgle the storeroom and did so by following employees of AEON. 

Aggravating feature

12.  You have appeared in court on 8 previous occasions accumulating a total of 19 convictions, 3 of which are for burglary.  Although the burglaries were committed in 2007 you have been convicted on thirteen occasions since that time for offences of dishonesty.   

13.  You last appeared in court on 8 March 2016 when you were sentenced to a total of 8 months’ imprisonment for three offences of theft.  You were released from that sentence on 19 August last year[3]. Just over four months later you were again committing offences of dishonesty. 

14.  I am satisfied you are properly to be regarded as a persistent offender.   I enhance the starting point for each offence by 3 months to 2 years and 3 months’ imprisonment and 2 years and 9 months’ imprisonment respectively. 

15.  Giving you full credit for your pleas of guilty reduces the sentence on charge 1 to 1 year and 6 months’ imprisonment and on charge 2 to 1 year and 10 months’ imprisonment.

Compensation

16.  Your family have today paid into court the sum of $3,000 to compensate AEON for their loss.  Giving you credit for this payment I reduce the sentence on charge 1 by 2 months to 1 year and 4 months’ imprisonment.

Confession

17.  On the information before the court it would appear the only evidence on charge 1 is your confession.  In HKSAR v Ma Ming[4] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

18.  The Court of Appeal in HKSAR v Ngo Van Nam[5] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

Totality

19.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

20.  Taking into account all the circumstances of the two burglaries, including payment of compensation, I am satisfied a total sentence of 2 years and 2 months’ imprisonment is appropriate.

Sentence

21.  You are convicted and sentenced as follows:

Charge 1 – 1 year and 4 months’ imprisonment and compensation of $3,000 to be paid to AEON from monies paid into court; and

Charge 2 – 1 year and 10 months’ imprisonment with 10 months consecutive and 12 months concurrent to charge 1.

22.  The total sentence to be served by you is 2 years and 2 months’ imprisonment, which I am satisfied properly reflects your criminality on the two charges.