HKSAR v. KWAN TAK HANG DICKEN

DCCC 1010/2017

[2018] HKDC 277

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1010 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant burglarized his ex-employer’s shop after hours, an amusement game centre, stealing $17,500 cash from the till. He pleaded guilty before me to one count of burglary.

2.  The game centre is situated in the same public housing estate, Sha Kok Estate, where the defendant lives. The defendant left home at around 3 o'clock in the morning of 2 June 2017, entered the centre through the locked back door, took away $17,500 from the till, and then doubled back home.

3.  Later in the morning when the game centre opened for business, the manager, Mr. Wong, discovered $17,500 cash had gone missing and therefore reported the matter to the police.  

4.  There were security cameras along the way from his home to the game centre, and the defendant’s trail was basically caught on video surveillance. Once inside the game centre, he was seen walking towards the till and stayed there for a while. The police were able to locate the defendant 5 days later with the help of the CCTV footages.

5.  Investigation revealed that the defendant had been casing the joint – he went to the centre about 2 weeks before to see how he could open the back door.  On the day of offence, he used an s-hook to open it.

6.  Police searched his home and recovered part of the stolen cash ($7,500) and a brand new mobile phone. The defendant admitted to the police that he had used $6,000 of the stolen money to purchase the phone and spent the rest ($4,000) to cover his living expenses. 

7.  The defendant, aged 21, has no previous convictions. Defence Counsel has taken the court comprehensively through the life of the defendant since he was born – it was a rather tragic story. He is the only child in the family and hardly knows his father because the father deserted them when he was still an infant. 

8.  Defence counsel described the family as poverty-stricken. Life was difficult enough when the defendant was being raised by a single parent; the situation would only go from bad to worse with the death of his mother in 2012 from cancer at a time when the defendant was only in Form 3. Though being left to his own devices, he had not given up hope – he continued his schooling and at the same time worked part-time to supplement the meagre allowances from the Government.   

9.  The court heard that the defendant’s left thumb was deformed hindering the movement of the hand, which in turn made him much less employable. Consequently, he has not been able to hold down any job for long; as for the job in the game centre in question, he only worked for 5 months from March to August in 2015.

10.  Despite his poverty, he was honest and led an honourable life, counsel said. The defendant had twice returned lost articles found on the street to their owner in the past; one in 2013 and the other in 2015. Counsel submitted that the present case is totally an out-of-character offence.

11.  Given the unusual circumstances of the defendant’s background, counsel asked the court to consider non-custodial sentence.

12.  Although I feel sympathetic towards the defendant, looking at the case as a whole, I do not think that it is something out of the ordinary that would justify a departure from the guidance set down by the higher court on sentence.

13.  The defendant clearly had a knowledge of what and how to steal from the game centre as he had worked there before. He told the police that he even went over to the game centre 2 weeks before to check on the back door to see how he could open it (facts admitted by the defendant), but counsel tried to argue that the back door in fact was very easy to open.

14.  It doesn’t seem to be that easy for he told the police that he had used an s-hook to open it. Whichever way one looks at it, the instant case could hardly be described as opportunistic burglary.

15.  In Sim Ka Wing CACC 450/2000 (a case submitted by the Defence), which is a case on burglary by an employee who had submitted notice of resignation but yet left the employment, the sentencing judge regarded it as a case of breach of trust. The Appellate Court has this to say:-

“……His breach of trust, as stock J A pointed out in the course of argument, involved his use of knowledge about the Delifrance outlet in Worldwide House which he had acquired while working there. We do not wish in any way to belittle that breach of trust, but it is not a breach of trust of the kind which the phrase normally applies. Thus, although the breach of trust in this case warranted a further enhancement of the starting point, that increase should only have been modest.”

16.  The defendant in the instant case had left the employment for quite some time – almost 2 years.  For the present case, I do not see any reason for enhancement on such ground.

17.  According to the sentencing guidelines for non-domestic burglary, in the absence of aggravating features, a term of 30 months is to be considered.

18.  Given the facts of the present case, I take 30 months as starting point. His plea is timely so he is entitled to a full one-third discount. Giving the appropriate deduction, the starting point is reduced to 20 months.

19.  Taking into account the rather miserable conditions the defendant had been living all his life, I am prepared to reduce the sentence further by 3 months. The final sentence is one of 17 months’ imprisonment.