HKSAR v. YU CHEUK LAI

DCCC 730/2024

[2025] HKDC 668

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 730 OF 2024

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REASONS FOR SENTENCE

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The defendant faces 4 charges of "Burglary" (Charges 1, 2, 4 and 5)  and a charge of "Absconding" (Charge 3).

2.  He pleaded guilty to Charges 1, 2, 3 and 5.  I granted the prosecution's application leave Charge 4 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

3.  Madam Kwok (PW1)  was the operator of a restaurant situated at Shop No.11, Ground Floor, Century Industrial Centre, Au Pui Wan Street, Fo Tan (Shop 1).  In August 2021, she began to employ the defendant on a part-time basis.  He was given a key to the roller shutter of Shop 1 ("the Key")  for work purposes.

4.  In the morning on 23 June 2022, the defendant took sick leave and left Shop 1 after working for about 3 hours.  He did not return since.  PW1 tried to inform the defendant that his employment had been terminated and that he was required to return the Key.  Despite multiple attempts, she was unable to contact the defendant via WhatsApp or by phone.

Charges 1 and 3

5.  About 7:00 a.m. on 9 August 2022, an employee of Shop 1 found $1,000 missing from the cashier.  CCTV footage showed that about 3:00 a.m. on the same day, the defendant entered Shop 1 and took one $500 note from the cash register and five $100 notes from the drawer.

6.  In the afternoon on 11 August 2022, the Police arrested the defendant at his home.  Under caution, he admitted having stolen money to repay his loan because he was unemployed and in debt.

7.  The defendant was charged and brought to court on 14 September 2022.  Court bail was granted.  On 16 November 2022, he was absent from a mention hearing due to sickness.  On 30 November 2022, he failed to attend court.  A warrant of arrest was issued against him.

Charge 2

8.  Shop 1 had an electric roller shutter at its entrance.  It had a switch panel box on the outside of Shop 1 which required a key to open.  After the incident in Charge 1, a new padlock was added to the roller shutter.

9.  About 7:00 a.m. on 29 November 2022, Madam Li (PW2), manager of Shop 1, found the padlock of the roller shutter missing.  The keyhole of the switch panel box was filled with glue.  PW2 also discovered cash in the sum of $13,744 missing from the cashier.  CCTV footage showed that about 9:30 p.m. on 28 November 2022, the defendant took money from the cashier and left.  After one minute, he returned and took from the cashier and drawer all the money and a mobile phone (valued at $1,999)  which belonged to an employee of Shop 1.  Having worked with the defendant for about a year, PW2 recognized the burglar being him.

Charge 5

10.  Mr. Liu (PW3)  was the manager of a restaurant situated at Shop No.331, 3^rd Floor, Wo Che Plaza, Tak Hau Street, Shatin (Shop 2).  About 6:30 a.m. on 10 August 2023, PW3 was informed that Shop 2 had been burgled.  He returned to Shop 2 and discovered 4 keys to the padlocks of 4 cash boxes missing.  Cash in a total sum of $39,000 contained in the 4 cash boxes were also missing.  The padlock of Shop 2's back door was damaged and left on the floor.

11.  The defendant's fingerprint was found on 2 cash boxes.

Arrest and admissions

12.  On 14 August 2023, WPC 25202 intercepted the defendant for enquiry.  Under caution, he admitted that in the evening on 9 August 2023, he entered Shop 2 from its back door by breaking the lock.  He then saw 4 cash boxes and 4 keys at the cashier counter.  He used the keys to open the cash boxes and took away all the money.  The defendant was arrested for "Burglary".  Under caution, he admitted having burgled Shop 2 because he was in need of money.

13.  The defendant was also arrested for "Absconding" (i.e. Charge 3)  and "Burglary" in relation to Charge 2.  Under caution, he admitted that he burgled Shop 1 because he ran out of money.  He could not recall the amount he had stolen.

14.  In his video recorded interviews, regarding Charge 2, the defendant claimed that he had worked as a chef at Shop 1 from 2019 to November 2022.  About 11:35 a.m. on 28 November 2022, he took away $10,000 odd cash and a mobile phone from Shop 1.  He had the key to open the padlock of the roller shutter.  After entering the Shop 1, he went to the cashier area and opened the cash register, which was unlocked.

15.  Regarding Charge 5, the defendant admitted that he went to the rear staircase of Wo Che Plaza and saw the back door of Shop 2.  He broke the padlock of its back door with force.  After entering Shop 2, he went to the reception area and found a bunch of keys in an unlocked drawer.  He tried to use the keys to open another drawer.  He then saw 4 cash boxes inside the drawer and took all the money away.  He had spent the money on drinks and food.

Mitigation & Sentence

16. The defendant is 25 and has 1 conviction of a triad-related offence (dated 2017), for which he was given a Probation Order. Defence counsel Mr. Lin informed me that the defendant is single and resides with his parents and an elder sister. Prior to the present offences, he was a casual kitchen worker earning about $18,000 per month.

17. In mitigation, Mr. Lin submitted that there is no evidence showing that the defendant had used any heavy tools or equipment for breaking in. He acted alone each time and no advance planning or sophisticated skills were involved. Mr. Lin stressed that there were no aggravating factors.

18. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. In need of money for food or to repay debts is most certainly not an excuse.

Charges 1, 2 and 5

19. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Charges 1 and 2 were targeted at the same restaurant and they took place less than 4 months apart[1]; whereas the defendant committed 2 more burglaries (namely Charges 2 and 5)  whilst on court bail is no doubt an aggravating factor[2]. As an employee (or immediate ex-employee)  of PW1, using the Key to burgle Shop 1 constituted a classic Barrick type of breach of trust, which is also an aggravating factor.

20. I consider a starting point of 33 months' imprisonment each appropriate and just. With the timely guilty plea, I sentence the defendant to 22 months' imprisonment for each charge.

Charge 3

21. For this offence, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[3]. The defendant has absconded for 8.5 months. In HKSAR v Wong Chi Hung CACC 300/2010[4], the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days. I adopt a starting point of 4.5 months' imprisonment. With the timely guilty plea, I sentence the defendant to 3 months' imprisonment for this charge.

Overall sentence

22. Bearing in mind the totality principle, I consider a global starting point of 48 months' imprisonment appropriate for Charges 1, 2 and 5. With the timely guilty pleas, the overall sentence becomes 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, I order 5 months in Charge 2 to run consecutive to Charge 1; and 5 months in Charge 5 to run consecutive to Charges 1 and 2.

23. Charge 3 is separate and distinct from the other 3 "Burglary" charges. Notwithstanding the totality principle, I order the sentence for Charge 3 to run consecutive to Charges 1, 2 and 5, arriving at a total prison term of 35 months for all 4 charges.

24. I note that as a teenager, the defendant was an accomplished snooker player having won a number of titles in local and international matches. It is very sad to see him wasting his skills and talent. With the determination and discipline of a professional athlete, I am sure there will be opportunities for him to pick up the sport again and to make himself and Hong Kong proud.