HKSAR v. LAM HIU LAAM

DCCC 58/2025

[2025] HKDC 781

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant was convicted on her own plea of 2 counts of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap. 210.

Facts

2.  According to the summary of facts admitted by the defendant, Ms Sung was an employee of BEANS the Backyard at Shop F95, 1/F, PopCorn 2, No. 9 Tong Chun Street, Tseung Kwan O, New Territories, Hong Kong (hereinafter referred to as “Location 2”).  On 15 June 2024 at 2250 hours Ms Sung observed an iPad placed on the table near the serving area, and a donation box placed on a table near the entrance of Location 2.

3.  She also checked that Idle Awhile, an adjacent beverage shop owned by the same company located at Shop F96 (hereinafter referred to as “Location 1”), that Location 1’s money storage drawer was locked and the keys to the drawer were placed in a cabinet to the right of the drawer.

4.  On 16 June 2024 at around 0730 hours, when Ms Sung returned to work she found that the iPad and the donation box were missing from Location 1.  The money storage drawer at Location 2 was unlocked, the keys to the said drawer and the cash kept inside it were missing.

5.  Upon review of the CCTV footages of Locations 1 and 2, Ms Sung found that the defendant, a former manager of both Locations, entered Location 1 at around 0126 hours.  The defendant took the keys to unlock the money storage drawer and stole the money stored inside (Charge 1).  She then entered Location 2 and took the iPad and the donation box (Charge 2).

6.  Police located the defendant at “Just Steak”, the defendant’s place of employment.  At 2125 hours and 2127 hours the defendant was arrested for the offences of “burglary” committed at Locations 1 and 2.  A key found on the defendant opened a locker in the staff room of Just Steak.  An iPad was found in the locker.

7.  CCTV footages at Location 1 captured the defendant unlocking the money storage drawer with the keys she took from the cabinet.  At 0127 hours she took all the banknotes from the unlocked drawer placing them inside a plastic bag that she placed into her bag.  She took all the coins from the same drawer, placing them inside a plastic bag and then into her bag.  She took the keys and left Location 1.

8.  CCTV footages at Location 2 captured her wandering around the public area between Locations 1 and 2.  One minute later, she moved a queue stand to enter Location 2.  She took the iPad from the table in the corridor and the donation box from the cashier counter.  She left Location 2 at 0131 hours.

9.  CCTV footages at “Just Steak” captured the defendant entering the staff room at 1321 hours on 16 June 2024 holding a black iPad and left the staff room without the iPad.

10.  In a subsequent video-recorded interview conducted on 18 June 2024, the defendant admitted under caution that at Location 1 she used the keys placed next to the money storage drawer to open it, she took the keys and several hundred dollars from the drawer.  She further admitted that she took the donation box and iPad from Location 2.

11.  On 16 June 2024, the defendant entered Location 1 as a trespasser, she stole the keys and HK$935 cash.  She entered Location 2 as a trespasser, she stole an iPad and a donations box containing around HK$2,000 cash.

Previous conviction

12.  The defendant was convicted of 13 charges, 12 of the charges were related to dishonesty including charges of theft and obtaining property by deception.

Antecedents and Mitigation

13.  The defence agreed with the contents stated in the defendant’s antecedents statement.

14.  The defendant is 38 years of age, she was born in Hong Kong and lived with her 16-year-old daughter prior to her arrest.  The defendant’s parents are divorced, they are both gainfully employed.  The defendant supported her parents by giving them approximately HK$2,000 to HK$3,000 per month.

15.  After completion of Form 3 education, the defendant worked as a wedding planner prior to COVID.  After the pandemic, she worked in the restaurant industry.  She worked as a supervisor at a bistro “Amare” from 2020 to 2023 earning a monthly income of approximately HK$20,000.  From 2023 to 2024, she worked as a supervisor at Beans (Location 1)  and Idle Awhile (Location 2), earning a monthly income of HK$21,000.  She worked as a waitress at the restaurant “Just Steak” from May 2024 to June 2025.

16.  The defence submitted that at the time of the offences, the defendant was walking from her residence to Shun Tak Estate via Popcorn Shopping Centre to purchase supper.  As she walked past Locations 1 and 2, she saw that the shops were easily accessible and burglarized both Locations out of greed.

17.  In mitigation, the defence indicated that both Locations were non-domestic premises.  Locations 1 and 2 were situated in an open area where the defendant could gain easy access.  The Locations were barricaded only by the use of queue stands after closing.  The defendant acted alone and did not use force to gain entry or cause damage to property.  At the time of the offences, the shops were closed and the defendant’s actions did not alarm anyone.

18.  The stolen properties from Location 1 including the keys and from Location 2 including the donation box and iPad were subsequently recovered by the police.  It was suggested that as the offences were committed within a short period of time and Locations 1 and 2 were of close proximity to each other, the court should treat the offences “as one course of conduct”.

19.  The defence conceded that the defendant was an ex-employee of both Locations 1 and 2 and accepted that the offences involved an element of breach of trust.  However, it was submitted that the breach of trust involved in the present case differed from the typical theft by employee cases.  The present offences involved the use of knowledge acquired by the defendant while she worked at the offence locations.

20.  In the mitigation letter written by the defendant, she expressed remorse for her actions.  She realized that her actions impacted the victim company, her family and her daughter.  She was a single mother, her daughter and the defendant have always relied on each other.  To improve herself, she learned different skills and participated in religious classes during her remand.  She was determined to build a healthy social circle and become a responsible mother upon her release.

21.  The defence referred the court to the authorities of HKSAR v Cheng Chi Shing [2001] 2 HKLRD 75, HKSAR v Cheng Wai Kai CACC 338/2007, HKSAR v Sim Ka Wing CACC 450/2000, HKSAR v Chen Ting Fang CACC 221/2007, HKSAR v Chan Wan Chi Jenny DCCC 326 & 635/ 2019 and HKSAR v Lee Chi Keung DCCC 800/2019 & 217/2020.

Sentencing consideration

22.  Burglary is a serious offence that carries a maximum imprisonment term of 14 years.  It is well settled that burglary of a domestic premise would attract a sentence of 3 years’ imprisonment after trial even if the offender is of clear record, and in the absence of any aggravating factors.  The burglary of a non-domestic premise would usually attract a starting point of 30 months’ imprisonment.

23.  The authority of Cheng Wai Kai set out factors that could be considered aggravating for which sentence would be increased at the starting point.  The aggravating factors included: (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by 2 or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences.

24.  The defence agreed that the present case involved the trespass of Locations 1 and 2, both were non-domestic premises.  I adopt a starting point of 30 months’ imprisonment each for charges 1 and 2.

25.  The stolen properties included a set of keys, a donation box, an iPad and an amount of approximately HK$2935 cash.  HK$2000 cash and other stolen properties were recovered by the police.  Although HK$935 stolen from Location 1 was not recovered, the defendant made a voluntary full compensation to the victim company, hence the victim company did not suffer any actual loss.

26.  The defence suggested that the offences were opportunistic in nature as the defendant entered the Locations when she happened to walk past and noticed the lack of security and easy access.

27.  The defendant entered Locations 1 and 2 at around 0126 hours and 0128 hours respectively.  She chose to approach the Locations in the early hours of the morning knowing that the Locations were closed and there would not be employees and/or patrons at the premises.  As a former employee of Locations 1 and 2, she would have been familiar with how the Locations would be secured after closing.  The defendant took advantage of the lax security measures adopted by Locations 1 and 2, and the absence of security guards in the early hours of the morning to gain easy access to the Locations.  I do not accept that the offences were opportunistic in nature.  The defendant went to the Locations with the intention to commit burglary.

28.  The defence agreed that the use of knowledge about a burgled premise acquired by a defendant during his/her employment constituted a breach of trust and an aggravating factor that warranted an enhancement of sentence [see: Sim Ka Wing and Chen Ting Fang].  However, the breach of trust in the present charges involved a former employee using knowledge acquired during employment at the Locations which differed from the typical theft by employee breach of trust circumstance.  A comparatively moderate enhancement should be adopted in such cases.  I enhance the defendant’s starting point by 2 months.

29.  The defendant was convicted of 13 charges from 2005 to 2020, all the charges involved dishonesty.  However, the defendant was convicted of the charges some years before the present case and were not of similar nature to the present charges.

30.  The defendant committed multiple offences which is considered an aggravating factor in Cheng Wai Kai.  I enhance the defendant’s starting point by 1 month.

31.  I have considered the circumstances of the offences, the mitigation and authorities submitted by the defence and the mitigation letter submitted by the defendant.  I find no grounds for any further deduction of sentence.

32.  I adopt 33 month’s starting point for each of charges 1 and 2.  The defendant is entitled to a deduction of one third of her imprisonment term for her guilty pleas.  The defendant is sentenced to 22 months’ imprisonment for each of charges 1 and 2.

33.  The offences were committed at different locations and at different times, as such part of the sentences for the 2 charges should be served consecutively.  I have considered the principle of totality.  I order that 2 months’ imprisonment term of charge 2 be served consecutively to the 22 months’ imprisonment term of charge 1.  I sentence the defendant to a total imprisonment term of 24 months.