HKSAR v. CHAN HIU KIN

DCCC 477/2020

[2021] HKDC 242

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 477 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary of a restaurant, contrary to section 11 of the Theft Ordinance[1] and one charge of using documents on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance[2].

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today.  In summary on 21 February 2020 Mr Cheng, the owner of “Yu Sin’s Fish Shop Specialist” situated on the Ground Floor, No. 15 Hong Keung Street in San Po Kong, closed and secured the restaurant after closing business at 2200 hours. 

3.  At 0102 hours on 22 February 2020 while conducting anti-burglary patrol, police officers saw a private car parked on Hong Keung Street with number plates bearing the registration mark VP 6274.  The defendant alighted from the car and tampered with the switch panel box of the roller shutter of the restaurant.  At the third attempt the defendant succeeded in opening the roller shutter and entered the restaurant. 

4.  At 0138 hours when the defendant left the restaurant by the rear entrance he was intercepted and arrested by the police in the course of which the defendant dropped a screwdriver on the ground.  Under caution the defendant admitted burgling the restaurant because he had lost a lot of money. 

5.  Mr Cheng returned to the restaurant at 0200 hours and found signs of ransacking and that the cash register had been prized open but nothing was missing.

6.  Inside the private car the police found a pair of number plates with the registration mark WN 5017.  In a video recorded interview, the defendant admitted, inter alia, that he was the owner of the private car; the genuine registration mark was WN 5017; he changed the number plates to avoid identification; he then drove to San Po Kong where he parked the car; he prized open the switch panel box of the roller shutter; and he prized open the cash register but did not take anything as there was only a few coins. 

Mitigation

7.  In passing sentence, I have carefully considered the oral and written submission of Ms Ho, including that the defendant, aged 37, is divorced, lives with his parents and works as a Uber driver[3].

8.  I have read the mitigation letter written by the defendant in which he explains that because of the pandemic his work as a driver dropped significantly leading to him committing burglary and how he misses his two daughters after his wife divorced him[4].

9.  I have also read the letters written by the defendant’s mother, sister and elder brother asking the court to give the defendant a chance.

10.  I have considered the two sentence cases for similar offences submitted by Ms Ho[5].

Burglary

11.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

12.  The fact the defendant did not steal anything is not in my view a mitigating factor. 

Persistent offender

13.  The defendant has appeared in court on two previous occasions for offences of theft, fraud and burglary.  The defendant last appeared in court on 19 September 2018 when he was sentenced to a total of 2 years and 10 months’ imprisonment for five offences of burglary and two offences of theft. 

14.  The defendant was released from prison on 13 November 2019[6] and just over three months later commits burglary again.  I am satisfied the defendant is a persistent offender.  I enhance the starting point by 3 months’ imprisonment to 2 years and 9 months’ imprisonment. 

15.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 10 months’ imprisonment.

Charge 2 – using a number plate with intent to deceive

16.  I regard the use of false number plates to avoid detection as a serious offence. I am satisfied a starting point of 6 months’ imprisonment is appropriate. 

17.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

18.  Although the offences are connected, the offence of using number plates with intent to deceive is in my view an aggravating feature of the burglary for which a consecutive sentence is appropriate[7].

19.  I am satisfied a total sentence of 2 years’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[8].

Sentence

20.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment; and

Charge 2 – 4 months’ imprisonment with 2 months consecutive and 2 months concurrent to charge 1.

The total sentence to be served by the defendant is 2 years’ imprisonment.