HKSAR v. CHIU SIU MAN, MASCOT

DCCC 1174/2022

[2023] HKDC 1186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1174 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges and all the offences took place inside the Kwun Chung market: -

Charge 1: Burglary from a market stall (No MN140). The stolen items were snow peas, chilies, ginkgoes, carrot, egg plants and onion. (total value $300)

Charge 2: Burglary from a market stall (No M20). The stolen items were two pieces of frozen foie gras, 4 packs of duck hearts and 3 frozen partridges.
(total value $1,410)

Charge 3: Theft from a market stall (No P4), one frozen duck. (total value $80)

Summary of facts

2.  At about 8pm, on the 5 October 2022, a cleaner noticed the defendant came out from stall MN140 with some vegetables in her hand.

3.  The security officer (PW2)  was then altered about it.

4.  PW2 asked the defendant what she was doing, she did not reply.  The case was reported to the police.

5.  CCTV captured the defendant stole those items from stall 1 and 3. Stall 2 ‘s stolen items were found from the D’s shopping cart.

6.  The situation of the 3 stalls at the material time: -

(a)  Charge 1: the door to the storage compartment which was at the shop front was unlocked;

(b)  Charge 2: the roller shutter was halfway down;

(c)  Charge 3: the freezer was unlocked and placed outside the shop.

Criminal record

7.  The defendant has 14 court appearances between 1993 to 2022 with 24 criminal convictions.

8.  There were 2 convictions of burglary in 2018, other offences included 5 convictions of theft and 2 convictions of attempted theft.

Personal Background

9.  The defendant is 46 years old.  She has a 22 years old son.  She was unemployed at that time and stole the items for her own consumption.

Mitigation

10.  There was no premeditation or planning in committing the present offences, no involvement of tools and she was acting alone.  She entered the shops without using any equipment, rather, the shops were not locked at the material time.

11.  She has taken a course of Hygiene Manger Course during this period of remand and is proactive in providing assistance to the Lo Wu Correctional Institution.

12.  The defendant in her mitigation letter told me that her ex-boyfriend was totally irresponsible.  She took out a loan of $400,000 for him, but he never contributed to repayment.  He left her to another woman when she was in prison. She also suffers from depression.

13.  During this period of remand, she finds strength from the bible and is now re-establishing herself to lead a positive life. The Operation Dawn is on her side to help her to re-build her future.

Sentence

14.  It is well established that non domestic burglary, for the first time offender without any aggravating factor, attracts a sentence of 30 months.  While in the case of opportunistic burglary as stated in HKSAR v Sim Ka Wing CACC 450/2000 that the conventional starting point can be lowered.

15.  The defendant cited 3 cases that a starting point of 18 months is appropriate: -

(a)  HKSAR v Gurung Rishi [2022] HKDC 60

(b)  HKSAR v Yanto [2021] I-IKDC 1293

(c)  HKSAR v Cheung To Ming CACC 406/2005

16.  I accept that the stalls in Charges 1 and 2 were not properly locked that the defendant took the opportunity to enter and steal.

17.  The value of the items in Charge 1 was relatively low ($300)  as compare to the value in Charge 2 ($1,410).

18.  Against this background, I adopt a starting point of 18 months for both charges.

19.  However, there are aggravating factors existed in the present case.  The defendant has 2 previous records of burglary and she committed these offences shortly after she was released from prison on 30^th September, 2022. Five days later, she committed the present offences.

20.  The defence asked me not to treat these as aggravating factors because of her unfortunate encounter/experience with her ex-boyfriend.

21.  I disagree as this will send a wrong message to the public.

22.  As such, I enhanced the sentence by 3 months for Charges 1 and 2 and the sentence is now arrived at 21 months.  I allow 1/3 discount; it comes down to 14 months’ imprisonment.

23.  As to Charge 3, it was a theft of a frozen duck ($80), she has a number of theft convictions from the magistracies, I consider that a starting point of 6 months is appropriate, I reduce the sentence to 4 months after 1/3 discount.

Principle of totality

24.  The defendant in mitigation suggested a concurrent sentence for all the 3 charges as they were committed in a consecutive act within the same building.

25.  I disagree.

26.  As said in the case of HKSAR v Lau Hiu Man [2013] 2 HKLRD 862 that the appellant committed two burglary offences in the same unit within a matter of minutes, the Court upheld the partly consecutive sentence for 2 charges of burglary as “they were separate and distinct incidents and that the second burglary offence adds to the culpability of the first.”

27.  In the present case, the locations of the stalls: -

i. Stall one in charge one was on the first floor

ii. Stall two in charge two was on the upper ground floor

iii. The stall in charge three was opposite to stall two.

28.  The D committed the 3 offences at three separate shops and they are clear to me that they are separate and distinct incidents.

29.  As such, I ordered 6 months from Charge 2 to run consecutively to Charge 1, 2 months from Charge 3 to run consecutively to Charge 1 and 2.

30.  The total sentence is 22 months.