HKSAR v. SHA KAI LUN

DCCC 234/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 234 OF 2016

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REASONS FOR SENTENCE

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1. The Defendant pleaded guilty to the two counts that he faced, namely count 1 of attempted burglary, contrary to Sections 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and Section 159G of the Crimes Ordinance, Cap. 200, and count 2 of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Summary of Facts

The first charge

2.  On 16 September, 2015, at 0000 hours, Mr. Choi locked up the shop “Begin Diamond Ltd.” situated at Room A, 1/fl., No. 58-60, Kimberly Road, Tsim Sha Tsui before he left the premises.  When he returned to the shop at 11.45 a.m. that day, he found that the circular ventilation fan installed at the top window of the shop had been damaged, and the surrounding metal frame dismantled, and the surrounding glass cracked.  Mr. Choi claimed the repair costs of the ventilation fan was HK$3,000.  It was clear someone had climbed from the ground floor into the backyard/balcony. CCTV installed outside the toilet at the backyard/balcony captured images of the Defendant at 3.30 a.m. on 16 September, 2015 and depicted the Defendant using a screwdriver to tilt the CCTV camera to one side.  The Defendant was arrested on 11 October, 2015 at 22.07 hours outside 732, Nathan Road, Kowloon. At the scene and under caution for burglary of the premises, he admitted that he wanted to climb into the shop for burglary but was unable to remove the ventilation fan and so could not burgle the shop. However, during a subsequent video record of interview under caution at the police station he denied the offence. Immigration records confirmed that the Defendant was in Hong Kong on 16 September, 2015.

The second charge

3. On 25 September, 2015, at 04:00 hours, Mr. Cheng locked up both the main entrance door and the back door of the “Good Take OK”, a restaurant situated at 1/f., No. 1, Blenheim Road, Tsim Sha Tsui before leaving. When he returned at 18:00 hours, he found the glass window of the back door had been removed, the cost of repair of which was HK$6,000.  The back door had been unlocked via the hole left on the back door after the glass had been removed to enter the restaurant.  The wine cabinet in the restaurant had been prized open, the cost of repair being HK$7,000. A total of 5 bottles of wine valued at HK$9,000 was found to be missing. CCTV installed inside the restaurant captured images of the Defendant at 11.07 hours on 25 September, 2015 for a few seconds – he switched off the electric power supply once he had entered the restaurant.  When interviewed under caution in a video-record of interview on 13 October, 2015, he admitted that he had visited the restaurant in the past to repair air-conditioners on the premises but denied going to the premises on 25 September, 2015. When shown the CCTV images, he said he had nothing to say.  His ex-employer confirmed he had sent the Defendant to the premises to repair/maintain the air-conditioners in the premises some time in August, 2015.  Immigration records confirmed the Defendant was in Hong Kong on 25 September, 2015.    

Previous Convictions

8. The Defendant has 13 previous convictions in 8 court appearances, including 6 for burglary or attempted burglary and 3 for robbery. His most recent conviction was on 7 July, 2016, when he was convicted of theft and sentenced to 4 months’ imprisonment. I am informed by Counsel for the Prosecution that the offence date for the theft offence, the type of theft offence commonly referred to as ‘theft by finding’, was on 24 June, 2016, i.e. whilst he was on bail for the current offences. This was admitted by Ms. Wu on behalf of the Defendant.

Mitigation

9. The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents. This disclosed that the Defendant was aged 37 years and educated to Form 3. He was an air-conditioning mechanic, but was unemployed at the time of the offences. He was married, but his wife lived on the Mainland with their one-year old daughter.

10. Ms. Wu informed the Court that she had to clarify certain matters in the Antecedent Statement – she said the Defendant was employed as an air-condition mechanic on a casual basis when he was arrested in October, 2015. She said his daughter was now 1 year and 8 months old, and he also had a son, now aged 8 months old.

11. Ms. Wu also informed the Court that the criminal record submitted to the Court was not up-to-date as the Defendant had been convicted of theft in Kowloon City Magistracy on 7 July, 2016 and sentenced to 4 months’ imprisonment. The up-to-date criminal record was submitted by the Prosecution today.

12. Ms. Wu very helpfully had prepared her mitigation in writing. She submitted that the Defendant had been working as an air-conditioning repair and maintenance worker since the age of 17 years and had been working for his employer since 1999. In mid-2014, he had sustained a work-related injury but as his employer had not taken out employees’ compensation insurance for the Defendant, he asked the Defendant not to lodge any claim for compensation and promised to compensate the Defendant but failed to do so. Because of the injury to his hand, he could no longer lift heavy objects. In late 2014, his employer asked the Defendant to switch from work as a full-time employee to work on a casual basis, and as work was scarce, his income dropped drastically. His employer failed to pay his wages on time and in full on many occasions and there was still outstanding wages due to him. The present offences were committed because of his financial need – his wife was pregnant with their second child and he needed money for her medical expenses and their new born baby. She submitted that the Defendant had not seen his new born son, as it was a condition of his bail that he could not leave Hong Kong.

Sentence

13. I have before me the Background Report that I have called for. Counsel for the Defendant confirmed that the Defendant agrees with the contents. Much of the contents confirm what Counsel submitted in mitigation.

14. The report I have before me has set out the background of the Defendant in great detail. Although Counsel submitted at length in respect of the Defendant’s great financial need that led to his committing the present offences, financial need in itself cannot amount to a mitigating factor. Counsel submitted at length about the Defendant’s former employer still owing wages to the Defendant, and the reduction of the Defendant’s income as a result of his changing from being a full time employee to being a part time employee and also the Defendant not being compensated for his work injury as his employer had not taken out the insurance he is required by law to do. I find that these matters do not amount to mitigation – if the Defendant’s former employer had not taken out the requisite insurance for employee’s compensation as he is required by law to do, and failed to pay him outstanding wages and compensation for injuries he has sustained at work, there are other legal channels that he can use to pursue these monies.

15. There is a well settled sentencing guideline for burglary of commercial premises. According to the guideline, the 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 1/2years’ imprisonment.

16. In the present case, I find there were no aggravating features in the commission of the offences in that the value of the stolen properties is not high, the Defendant committed the offences alone, the offences were committed at the time when the occupants had left the premises and that although there was damage caused in the course of both burglaries, the damage was not substantial. As I have already said, financial hardship is not a valid factor justifying a further reduction of the sentence. Nor is this the first time that the Defendant has committed offences of burglary.

17. For charge 1, although the Defendant is convicted of an attempt rather than a full offence, the facts which he has admitted clearly show that had he been able to remove the ventilation fan and gone into the premises, he would have entered the premises to steal therefrom.

18. In my view, the only appropriate sentence must be a custodial sentence. This is not the Defendant’s first conviction for burglary. He has 6 previous convictions for burglary. I do view that to be an aggravating factor. In respect of each count of burglary, I take as a starting point 3 years’ (i.e. 36 months) imprisonment, discount this by one-third to reflect the Defendant’s pleas and sentence him to 2 years’ (i.e. 24 months) imprisonment on each count.

19. The two burglaries committed by the Defendant are entirely separate and distinct offences. In theory, their sentences should run consecutively. Having taken into consideration the totality principle, I am satisfied that a total sentence of 36 months is sufficient to reflect the criminality of the Defendant’s conduct. I therefore order that 12 months of the sentence on Count 2 be served consecutively to the sentence on Count 1.

20. The Defendant is presently serving a sentence of 4 months’ imprisonment imposed on 7 July, 2016 for the offence of theft. This offence was committed whilst the Defendant was on bail for the present offences. I have considered the totality principle of sentence but I can see no reason not to order the sentences that I have imposed today to be served consecutively to the term that he is presently serving and I so order.

21. So the Defendant is sentenced to 3 years’ imprisonment in total today, to be consecutive to the 4 months’ imprisonment he is presently serving.