HKSAR v. WONG YIKSUN

DCCC 444/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant, Wong Yik Sun, appeared before me facing two charges of burglary.

2.  He pleaded guilty to both charges and admitted the facts pertaining to the charges.

3.  The first offence took place on 15 April 2015.  The second offence took place on 23 April 2015.  Both charges concerned restaurants in the Happy Valley area.  For Charge 1, the offence took place, as said, on 15 April 2015.  Mr Yeung is the proprietor of a restaurant named Home Economics situated at Ground Floor, No 11 Caroline Hill Road, Happy Valley, Hong Kong.  Business hours of the restaurant are between 12 noon and 10 pm.

4.  In the morning on the day in question, Mr Yeung returned to his restaurant at around 10 am.  At around 10:20 am he walked outside the restaurant in order to move his private car.  He left the restaurant unattended, with the entrance closed but unsecured.

5.  When he returned, he saw an unknown male person walking out from his restaurant.  That male person was approximately 1.7 metres in height and of slim build.  He was in spectacles and wearing a red windbreaker, and had with him a black rucksack.  The male person asked Mr Yeung whether the restaurant was open.  Mr Yeung replied in the negative, and the man left.

6.  Naturally, Mr Yeung found the male’s conduct suspicious.  He carried out a check in his restaurant, and confirmed that a plastic box containing tip money in the sum of $130 was missing.

7.  The CCTV recordings of the restaurant showed that the male person had walked into the restaurant, fetched the plastic box, put it in his rucksack, and left.  A report was made to the police.

8.  Charge 2 took place on 23 April 2015. Madam Fung Yin Kwan is a dishwashing worker of a restaurant known as Benson Cuisine & Wine situated at Ground Floor, No 12C Sing Woo Road, Happy Valley, Hong Kong.  Business hours of the restaurant are between 11:30 am and 11 pm.

9.  In the morning on the day in question, Madam Fung returned to work at around 8:10 am.  She unlocked the main entrance of the restaurant and placed a sign of “Please Wait” thereat.  All the lights inside the restaurant were switched off.  Madam Fung then walked out of the restaurant and read newspapers at the rear lane.  Inside the kitchen, Madam Fung left her handbag containing, among other things, cash in the sum of HK$2,000 and six red packets containing a total of cash HK$100.  There was no other person inside the restaurant at the time, and Madam Fung did not notice anything untoward.

10.  At 8:51 am on 23 April 2015, a team of police officers carried out patrol duties in uniform in the Happy Valley area. When the officers reached Sing Woo Road, they saw the defendant wandering outside Benson Cuisine & Wine.  The officers found the defendant’s conduct suspicious and kept him under observation.  Soon they saw the defendant enter Benson Cuisine & Wine by pushing open the glass door.  At around 8:54 am, the defendant emerged from the restaurant in a hurried manner.  The officers intercepted the defendant for inquiries.

11.  The officers searched the defendant.  Inside the rear right trousers pocket of the defendant, the officers found two HK$1,000 banknotes and six red packets containing a total of $100 cash.  Inside the black rucksack, the officers found, among other things, coins in the sum of HK$254.30 and RMB11, as well as seven Octopus cards.

12.  Upon initial inquiry, the defendant claimed that he had gone into the restaurant to use the lavatory.  Following further inquiries with Madam Fung, it was revealed that cash of $2,000 and six red packets had gone missing from her handbag.  No other items were found missing from the restaurant.

13.  The defendant was arrested for burgling the restaurant.  Under caution, he admitted having gone into the restaurant and stolen therein cash in the sum of $2,000 and six red packets out of momentary greed.

14.  At a later stage the defendant was also cautioned for the burglary of Home Economics as his general appearance matched that of the unknown male person captured on CCTV.  Under caution, the defendant admitted entering the restaurant at Caroline Hill Road and stealing a few tens of dollars.  He said he was then unemployed and he committed the offence out of momentary greed.

15.  The defendant had two video-recorded interviews where he admitted committing both burglary offences out of greed.  For Charge 1, the defendant admitted walking past a restaurant at Caroline Hill Road and decided to burgle it after noticing that the premises were, at the material time, unsecured and unattended.  He stole the plastic container containing a few tens of dollars’ worth of coins.  He further admitted that the red windbreaker he wore at the time of his arrest was the same as the one worn by him when he burgled the restaurant at Caroline Hill Road.  When shown screen captures of the relevant CCTV recordings of Home Economics of 15 April 2015, the defendant admitted he was the burglar.

16.  For Charge 2, the defendant claimed he was, at the material time, looking for a job at Sing Woo Road.  Finding that Benson Cuisine & Wine was unattended, he walked into the kitchen of the restaurant and stole from a handbag cash in the sum of $2,000 and six red packets.

17.  The defendant has a total of 12 previous convictions recorded against him.  He had been convicted on eight occasions for theft and two for burglary.

18.  The defendant is now 37 years old.  He completed Form 3 education in Hong Kong.  He had worked as a bus repair technician between 1997 to year 2000.  He was unemployed at the time of his arrest.  The defendant is still single, and he resided with his parents before his remand.

19.  Mr Yiu, who appeared for the defendant, has kindly prepared a full written mitigation on the defendant’s behalf. Mr Yiu told me the defendant was neglected by his parents during his childhood.  As a result, the defendant spent his childhood with dubious peers and was influenced by them.  Hence, the defendant turned delinquent in his early teenage.

20.  Mr Yiu submitted that the starting point for burglary of non‑domestic premises is 30 months’ imprisonment, and the starting point can be adjusted upward if the court found that there were aggravating circumstances in the case.  Mr Yiu conceded that the defendant has a bad record.  Mr Yiu accepted that the two burglaries were not opportunistic in nature, but he submitted that the defendant is not a professional burglar, as he carried no tools and he did not try to disguise himself or hide himself away from the CCTV, and the charges did not involve substantial property.  Finally, he urged me to take into account the frank confession made by the defendant to the police and his guilty pleas.

21.  In sentencing the defendant, I have borne in mind the facts of this case, the nature of the charges, and all the matters urged on the defendant’s behalf by Mr Yiu.

22.  As rightly pointed out by Mr Yiu, the starting point for burglary of non-domestic premises is 30 months’ imprisonment, but the burglaries in the present case were aggravated by the bad record of the defendant.  The defendant had eight previous convictions for theft and two for burglary.  The bad record of the defendant, in my judgment, calls for a higher starting point.

23.  In my judgment, Charge 1 and Charge 2 each call for a starting point of 33 months’ imprisonment.  The defendant is entitled to one-third reduction for his guilty pleas.

24.  That will bring his sentences for Charge 1 and Charge 2 down to 22 months respectively.

25.  Apart from the guilty pleas of the defendant I can see no other mitigating factors which can further reduce the sentences.  Mr Yiu, in his written mitigation, suggested that the defendant may have suffered from kleptomania, ie an inability to refrain from the urge to steal when one sees the chance, but there is no medical report to substantiate the mitigation.

26.  For the reasons given, on Charge 1, I sentence the defendant to 22 months’ imprisonment.  On Charge 2, I sentence the defendant to 22 months’ imprisonment.

27.  Bearing in mind the totality principle, in my judgment, a total sentence of 30 months’ imprisonment should adequately reflect the overall criminality of the two offences committed by the defendant.  To achieve this end, I order 8 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1.

(Discussion re compensation)

28.  I make a compensation order in the sum of $130 to Mr Yeung Chi Wai, the victim of Charge 1, the money to be taken from the prisoner’s property of the defendant.