HKSAR v. CHEUNG CHI CHIU BENNIE

DCCC 1222/2023

[2024] HKDC 902

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1222 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The defendant has pleaded guilty to two charges of burglary (non-domestic premises), and admitted the following facts.

Facts

2.  At all material times, Mr YU (PW1)  stored multiple bottles of Moutai at Shop No. 31, LG Floor, Kowloon City Plaza, No 128 Carpenter Road, Kowloon City (“the Storeroom”).

3.  In the evening on 3 June 2023, PW1 attended the Storeroom and noticed that some bottles of Moutai which were originally kept inside the Storeroom went missing.  The CCTV footage showed that:

(a)  at about 7:29 am on 3 June 2023, the defendant knelt in front of the door of the Storeroom and appeared to be unlocking the door thereat. About 3 minutes later he entered the Storeroom;

(b)  at about 7:32 am he left the Storeroom carrying two blue recycle bags on his shoulders. He then boarded a taxi and attended his residential estate in Cheung Sha Wan at about 7:58 am the same day.

4.  PW1 reported the matter to the police and the defendant was arrested on 5 June 2023.  Under caution for the offence of burglary, the defendant admitted that he had taken Moutai and planned on selling them.  He said that the stolen bottles of Moutai were still kept in his abode. In the subsequent video-recorded interview, the defendant admitted that he had entered the Storeroom without authorization.

5.  Upon subsequent house search, 2 boxes of Moutai (containing 12 bottles of Moutai in total), two blue recycle bags and attire which matched that captured on the CCTV in respect of charge 2 were found.

6.  PW1 confirmed that the 12 bottles of Moutai seized from the defendant’s abode were originally stored in the Storeroom.  He also confirmed that he had never provided the defendant with the Storeroom key.

7.  Upon further review of the relevant CCTV footage, it was found that the defendant entered into the Storeroom on 6 May 2023 and leaving the Storeroom with two stuffed blue recycle bags.  Under further caution for burglary, the defendant admitted that he had stolen wine in early May 2023 using the key to the Storeroom which had been given to him by a former colleague.  On that occasion, he had stolen two boxes of Moutai (totaling 12 bottles)  and had sold those Moutai for HK$40,000.

Previous Criminal Conviction

8.  The defendant has two criminal records: unlawful gambling in 1982 for which he was fined $150; and theft in 1994 for which he was imprisoned for 8 months.

Antecedent

9.  The antecedent statement was read into record.  In gist, it was said that the defendant was born in Hong Kong, and is now aged 65.  He received education up to level 5 of secondary school.  Prior to his arrest, he lived with his wife, his son aged 32 and his daughter aged 28.

Mitigation

10.  Mr Kan submitted that the defendant started to work for PW1 as a personal driver since May 2018 earning HK$37,000 per month until year 2018. However starting from November 2021, the salary arrangement was, PW1 paid $17,000 out of his own pocket and the rest of $20,000 was paid by PW1’s company account.

11.  In August 2022, the defendant suffered from a tendon rupture arising out of and in the course of his employment.  He was granted sick leave.  However, PW1 only paid the defendant $16,000 which was 4/5 of $20,000 during the sick leave period.  The defendant feeling aggrieved that PW1 did not pay him the rest of HK$17,000, and in order to support his living, he burgled into PW1’s shop twice. 

12.  Mr Kan said that the defendant is now remorseful and he will not re-offend.  Besides, he told the court that the defendant used to make monthly donations to 3 NGOs namely Medecins Sans Frontieres, Heifer Hong Kong and UNHCR for Refugees. 

13.  In his mitigating letter, the defendant said that he regretted for what he had done.  He asked for a lenient sentence.  Mrs Cheung, wife of the defendant, described that the defendant is a good husband and a good father.  She expressed that she has health problems and has declined the doctor’s advice to undergo an operation simply because the defendant is now being remanded. 

14.  In his letter, Mr Yu Shu Fai JP, said that the defendant was his driver and personal assistant.  The defendant was helpful, trustworthy and reliable.  During Covid, the defendant assisted in transporting epidemic prevention materials to grassroots people, vulnerable groups and the elderly. Mr Yu believed that the defendant committed the present offences in order “to get better treatment for his sick wife”, and “it was a wrong decision made in a moment of weakness”.  As for the colleagues of the defendant, they gave positive comments for the defendant. 

15.  Mr Kan drew the court’s attention to the following authorities: R v Wong Man CACC 373/1992, HKSAR v Cheng Wai Kai CACC 338/2007 and HKSAR v Ma Ming [2013] 1 HKLRD 813.

Reasons for Sentence

16.  This is a non-domestic burglary.  Obviously, the defendant planned to commit the offences.  Mr Chain for the prosecution submitted that the value of the stolen property for each charge was $84,000, totalling $168,000.  It is lucky that the stolen bottles of Moutai in charge 2 were recovered.  The stealing of 12 bottles of Moutai in May and the selling of them at $40,000 is a lucrative sum of money which caused the defendant to steal Moutai again in June.

17.  As rightly submitted by Mr Kan, the correct starting point for a single burglary of commercial premises committed by a first offender of full age where there is no aggravating or mitigating feature is 2 years and 6 months’ imprisonment (See: R v Wong Man).

18.  In light of the circumstances of the case, I take a starting point of 2 years and 6 months’ imprisonment for each charge.

19.  Mr Kan considered that the present case is not a breach of trust case because the defendant has never been entrusted with the key to the shop. The defendant was simply employed by PW1 as a family driver. Mr Chain agreed that it is not a breach of trust case. 

20.  It is noted in HKSAR v Sim Ka Wing CACC 450/2000, the Court of Appeal said, at para 10 :-

“Breach of trust is, of course, regarded as an aggravating feature in cases of dishonesty. But it is so regarded because the offender will have abused the trust reposed in him. That trust may have involved an employee being entrusted with his employer's money or valuables, or being placed by his employer in a position whereby the dishonest employee could defraud his employer or his employer's customers or clients. The point is that the offender is, to use the words of Lord Lane CJ in Barrick (1985)  7 Crim App R(S)  142, in a "privileged and trusted" position. It is that position of privilege and trust that he abuses. That is not really this case. The Applicant was not placed in a position of privileged and trust by Delifrance which he abused. His breach of trust, as Stock JA pointed out in the course of argument, involved his use of knowledge about the Delifrance outlet in Worldwide House which he had acquired while working there. We do not wish in any way to belittle that breach of trust, but it is not a breach of trust of the kind to which the phrase normally applies.”

21.  In light of the circumstances, it appears that the defendant was not entrusted with PW1’s money or valuables or in a “privileged and trusted position”.  The defendant acquired the knowledge that PW1 stored multiple bottles of Moutai in the Storeroom while working for PW1. Notwithstanding this, I do not consider that it is the type of breach of trust case commonly seen in the courts.  As such, I will not enhance the starting point for sentence.

22.  The defendant is entitled to a one-third discount for his timely plea.  The sentence of each charge is reduced to 20 months’ imprisonment. 

23.  Mr Kan submitted “…the prosecution has no evidence against the defendant on charge 1 had he not given frank disclosure in his cautioned interview.   Applying the principle in HKSAR v Ma Ming, I would urge the court to order the sentence of charge 1 and 2 to run concurrently….” On this, I do not agree with Mr Kan.  It is not a case in which the evidence of charge 1 comes solely from the defendant’s admissions.  The facts to which the defendant has just admitted clearly states that “Upon further review of the relevant CCTV footage, it was found that the defendant had entered into the Storeroom on 6 May 2023 and leaving the Storeroom with two stuffed blue recycle bags.”  I have watched the CCTV footage which depicts a man who was masked appearing in the vicinity of the Storeroom carrying two blue bags.  The man, at least, his build/outlook looks like the defendant. 

24.  Having considered the totality principle, I order that 6 months of the 2^nd charge should run consecutively to the sentence of the 1^st charge making a total of 26 months’ imprisonment.

25.  The defendant used to make monthly donations to 3 different charitable organizations.  As an act of mercy, the sentence is reduced by one month to 25 months’ imprisonment.

Conclusion

26.  The defendant is sentenced to 25 months’ imprisonment.