HKSAR v. CHAN CHUI

DCCC 16/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 16 OF 2013

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Reasons for Sentence

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Charge and facts

1. The defendant pleads guilty to the burglary of  a warehouse on 8^th Floor of an office building in Kwun Tong. 

2. On Saturday, after securing the doors and windows, the staffer left the premises.  It was closed for business on Sunday.  On Monday, the staffer returned for work but could not open the lock of the door.  He did not know it was damaged because of prising.  A locksmith came to change the lock.  On Tuesday, a mixer and an equalizer, worth about $3,300 in total, were found missing. 

3. A CCTV footage had captured the defendant opening the door and entering the premises at 1:10 p.m. on Sunday.  He then covered 2 camera lenses of the CCTV installed at the premises with some unknown objects.

4. At 1:22 p.m. one of the covers fell off as he was in gloves ransacking and putting the 2 stolen items into his rucksack and a bag he got from the premises.  Afterwards, he covered the camera lens again.  At 1:31 p.m. another CCTV footage captured him leaving with the rucksack and the bag. 

5. The proprietor recognized him from the footage as an ex-employee dating back to a few months before.  The matter was reported to the police with the defendant’s residential address.  The defendant was arrested on the same day.  After caution, he admitted the offence.  He had picked up a metal slice outside the premises to open the door and stole the 2 items.  He had sold them at $500 at Ap Liu Street and spent it all.  He brought the police to a rubbish bin and retrieved his shirt and jacket worn at the time of offence. 

Personal background and mitigation put forward

6. He is now 27 years of age, single and a secondary school graduate.  He had 7 previous theft records, 6 in 2006 and 1 in 2012.  Given their age, I do not find him a recidivist for theft here. 

Sentencing guidelines for non-domestic premises

7. In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age (as per Macdougall JA).

8. In HKSAR v Sim Ka-wing, CACC450/2000, the defendant was an area manager responsible for a number of Delifrance restaurants.  One evening while he was working out his period of notice after tendering his resignation, he hid in a toilet in the building. He had with him a rucksack containing a number of items for use in connection with the burglary which he was intending to carry out. They included a wig, glasses and cosmetics to disguise himself and a cap to conceal his face from the CCTV cameras. They also included an electric drill which he intended to use to drill into the safe, muffling the sound with a pillow which he also brought with him. He also had with him plastic gloves to avoid leaving his fingerprints, a voice-changing device to call for a taxi to make good his escape, and maps of Hong Kong which he proposed to carry when he left the building in the belief that he would not be intercepted if it was thought that he was a tourist. 

9. At para 9, Keith JA said this:

The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point.

10. The Court of Appeal reduced the starting point from 4 years to 3 years. 

Sentencing this defendant

11. I am prepared to subsume his knowledge of the layout of the premises and the CCTV lenses under the parameter of the conventional starting point of 2 ½ years.  I reduce it by one-third for his plea of guilty.  The sentence is 20 months as there are no other mitigating factors.