HKSAR v. CHAN YUEN SHING (also known as CHAN YUEN SING, CHAN KWONG CHUN, CHAN YUAN and CHAN WING FAT)

DCCC 495/2022

[2022] HKDC 1356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 495 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 on his own plea and agreement to Revised Summary of Facts.

Facts

2.  At about 4:50 am on 10 January 2022, when staff of Kam Kee Cafe situated at Ground Floor, No 5 Sharp Street East, Causeway Bay, Hong Kong (“Kam Kee”)  returned to work, he found the door to a safe placed under the cashier machine was broken and all items in the safe, including cash valued $17,169.30 and egg roll vouchers valued $19,764, were missing. 

3.  A report was made to the police and one CCTV camera at Kam Kee’s rear entrance was found damaged.  There was a hole on the anti-theft metal door at the rear entrance and a screwdriver was recovered from the drawer under the sink near to the rear entrance. 

4.  Repair cost of the CCTV camera, the safe and the anti-theft metal door was $6,350. 

5.  The CCTV camera of Kam Kee captured on 10 January 2022 at about 2:44 am, a male approach the cashier machine and tamper the drawers and safe with a screwdriver and a crowbar.  He broke the safe and took some items from the safe.  Before leaving, he left the screwdriver under the sink next to the rear entrance. 

6.  At 12:55 pm on 19 January 2022, police arrested the defendant outside his residence.  Under caution, the defendant admitted that he committed the burglary at Kam Kee. 

7.  In the video-recorded interviews, under caution, the defendant said, inter alia, that he arrived at the vicinity of Kam Kee to wait for the restaurant to close and he had committed the burglary after seeing all staff left the restaurant.  He opened a hole on the rear door with a screwdriver and hammer and entered Kam Kee.  He covered his upper body with a black bin bag to prevent being recognized.  He broke the safe under the cashier machine with a crowbar and took the banknotes, coins and some vouchers from the safe, and then searched the drawers and the cashier machine.  He identified himself as the man in the CCTV footage capturing the burglary. 

8.  At the material times, the defendant, having entered as a trespasser of Kam Kee, stole the properties within. 

Criminal Record

9.  The defendant has 17 criminal records, involving convictions of 23 charges.  There are 19 burglary/attempted burglary convictions.  His criminal record dated back to year 1980.  His last conviction was on 22 October 2021 for which he was sentenced to 22 months’ imprisonment.  He was released on 20 November 2021. 

Mitigation

10.  The defendant is aged 69.  He came to Hong Kong in the year 1979.  He received education up to Primary 3 in the mainland.  He is married with a wife and 3 children, but his relationship with them is not satisfactory although he lives under the same roof with his wife and his son. 

11.  The defendant is retired and relies on elderly allowance to support his living.  He has numerous records of criminal convictions since the year 1980. 

12.  Defence counsel submitted that the defendant pleaded guilty at the earliest possible moment and he is therefore entitled to full one-third sentencing discount.  He submitted the defendant is deeply remorseful. 

13.  He said the defendant committed the offence alone and no heavy machinery was used in committing the offence. 

14.  Defence counsel conceded that the sentencing starting point for a case of burglary of non-domestic premises is 2½ years’ imprisonment, and apart from the fact that the defendant is a repeated offender, there is no other aggravating factor in this case. 

Discussion

15.  Before sentencing, this court has carefully considered all that was said on behalf of the defendant. 

16.  As conceded by defence counsel, it is well established that the appropriate sentence starting point for burglary of non-domestic premises, in the absence of aggravating or extremely strong mitigating reasons, is that of 2½ years’ imprisonment. (HKSAR v Sim Ka Wing, CACC 450/2000)

17.  The defendant here acted alone.  He used a screwdriver, a hammer and a crowbar in prising open the rear door and the cashier machine.  The burglary in question is not an opportunistic one as the defendant waited for the staff of the restaurant to leave before he committed the offence.  This court accepts, however, there is absence of high sophistication in the commission of the offence. 

18.  There is nothing in particular about the value of the properties stolen and no one is expected to be within the restaurant at the time. 

19.  The defendant has 19 similar convictions in the past, the last one being in the year 2021.  In fact, he committed the present offence just over a month after his release from prison for an attempted burglary offence.  The defendant is clearly a persistent offender with no regret for what he has done over the past.  He has not learned his lesson despite all these terms of imprisonment passed on him.  This is an aggravating feature and the sentencing starting point is enhanced by 6 months to 3 years’ imprisonment. 

20.  Having considered the circumstances of the case and all that was said on behalf of the defendant, the most valid and useful mitigating factor is that of his timely plea, for which he is entitled to full one-third sentencing discount. 

21.  The defendant is therefore sentenced to 24 months’ imprisonment.