DCCC635/2019 HKSAR v. CHAN WAN CHI, JENNY - LawHero
DCCC635/2019
區域法院（刑事）Deputy District Judge Bernard Chung12/6/2024[2024] HKDC 953
合併案件：DCCC635/2019DCCC326/2019
DCCC635/2019
A A
B B
DCCC 326/2019 & 635/2019 (Heard together)
[2024] HKDC 953
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 326 OF 2019 AND 635 OF 2019
F F
(HEARD TOGETHER)
G G
------------------------------
H HKSAR H
v
I I
CHAN Wan-chi, Jenny Defendant
J ------------------------------ J
K K
L Before: Deputy District Judge Bernard Chung L
Date: 13 June 2024
M M
Present: Ms. Karinna Lai, Public Prosecutor, for HKSAR
N N
Ms. Emma Tsang, instructed by Messrs Wat & Co., assigned
O
by the Director of Legal Aid, for the Defendant O
Offence: DCCC 326/2019: [1] Burglary (入屋犯法罪)
P P
DCCC 635/2019: [1] Theft (盜竊罪)
Q Q
-----------------------------------------
R R
REASONS FOR SENTENCE
S ----------------------------------------- S
T T
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A A
B B
1. The defendant CHAN Wan-chi, Jenny (D) faces 2 separate
C Charge Sheets in DCCC 326/2019 and DCCC 635/2019, each containing C
2 Charges.
D D
E 2. In DCCC 326/2019 she is charged with: E
(1) Burglary, contrary to section 11(1)(b) and (4) of the Theft
F F
Ordinance, Cap.210. Particulars of Offence stated that on 25
G May 2018 she entered as a trespasser part of a building known G
as “Olive Café”, situated at Shop No. 12, Ground Floor, Zone
H H
A, Tai Po Mega Mall, No. 9 On Pong Road, Tai Po, and stole
I therein cash HK$21,800 (The Burglary Charge). I
(2) Failing to surrender to custody without reasonable cause,
J J
contrary to section 9L(1) and (3) of the Criminal Procedure
K Ordinance, Cap.221. Particulars of Offence stated that on 5 K
September 2019, being a person admitted to bail, without
L L
reasonable cause, failed to surrender to custody as had been
M appointed by a court (The Absconding Charge). M
N N
3. In DCCC 635/2019 she is charged with:
O (1) Theft, contrary to section 9 of the Theft Ordinance, Cap.210. O
Particulars of Offence stated that on 3 August 2018 at outside
P P
No.313 Kwan Tei Tsuen, Sha Tau Kok Road-Lung Yeuk Tau,
Q Fanling, she stole one light goods vehicle bearing registration Q
mark MT3386, belonging to KENT METAL COMPANY
R R
LIMITED (The Theft Charge).
S (2) Failing to surrender to custody without reasonable cause, S
contrary to section 9L(1) and (3) of the Criminal Procedure
T T
Ordinance, Cap.221. Particulars of Offence were the same as
U U
V V
-3-
A A
B B
stated in Charge 2 of DCCC 326/2019 above (The
C Absconding Charge). C
D D
4. She pleaded guilty before me to the Burglary Charge and the
E Theft Charge. On the application by the Prosecution, I order that the E
Absconding Charges on both Charge Sheets be left on Court File and not
F F
be proceeded with without the leave from the Court.
G G
Facts of Case
H H
I 5. The following facts are admitted by D. I
J J
The Burglary Charge
K K
6. In the morning of 26 May 2018, staff of “Olive Café” situated
L L
at the address as particularized in the Charge discovered that HK$8,000
M inside a safe, HK$12,000 inside the cashier and HK$1,800 inside a locked M
cabinet had gone missing. CCTV installed at the Café captured D entering
N N
the Café with a key at around 11:44 pm on 25 May 2018, using password
O to open the safe and the cashier with a key and stole the said cash therein. O
D then locked the safe, the cashier and the front entrance before leaving.
P P
Q 7. D was employed as the manager of the Café between Q
December 2017 and April 2018. She was supposed to have returned the
R R
keys to the management upon her leaving the job but she did not.
S S
8. D was put on the police “Wanted Persons List” and was
T T
arrested on 2 February 2019. Under caution, she admitted the offence,
U U
V V
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A A
B B
saying that she was in dire financial difficulties. She discarded the keys in
C a nearby garbage bin after the offence and used the proceeds to repay her C
debts.
D D
E 9. She was put on Court bail and was to appear on 5 September E
2019. She did not appear in Court as required, only to be re-arrested on 7
F F
April 2023.
G G
The Theft Charge
H H
I 10. Light Goods Vehicle bearing registration number MT3386 I
(the LGV) belonged to Kent Metal Company Limited, the employer of D’s
J J
father. This vehicle was assigned to D’s father for his use, and was parked
K at the open area outside his residence at the location as particularized in the K
Charge.
L L
M 11. On 11 August 2018, D’s mother found that the car key of the M
LGV which was placed on the desk inside the premises had gone missing.
N N
CCTV installed outside the residence captured D appearing at around noon
O on 3 August 2018 at the open space outside the residence and drove the O
LGV away. Since then, D became out of contact.
P P
Q 12. D was arrested on 2 February, 2019. She admitted under Q
caution that she stole the LGV as she was out of money. She sold it to an
R R
unknown male for HK$34,000 and had spent them all already.
S S
13. She was put on Court bail and was to appear on 5 September
T T
2019. She did not appear in Court as required, only to be re-arrested on 7
U U
V V
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A A
B B
April 2023.
C C
Defendant’s Backgrounds and Mitigation
D D
E 14. D is 41 years old, born in Hong Kong on 25 January 1983. E
She received up to Form 5 education. She used to work as a restaurant
F F
manager and later worked in a logistics company as an assistant in the
G human resources department earning around HK$14,000 per month. She G
also took up part-time work as a waitress earning around HK$65 per hour.
H H
She is single and resided with her family at the address as stated in the
I Theft Charge. She has 3 previous Convictions, 2 for “Gambling in a I
Gambling Establishment” for which she was fined, and 1 for “Theft” with
J J
a 1 month suspended sentence imposed. These offences all occurred
K subsequent to the 2 offences under consideration, therefore, she had a clear K
record when she committed the present 2 offences.
L L
M 15. Ms. TSANG representing D submitted in mitigation that as a M
result of a broken relationship, D lost the motivation to work and developed
N N
a gambling habit as an escapism, leading eventually to her borrowing from
O money lenders. When debt collectors threatened to disturb her family O
members, out of desperation, she committed the present offences in order
P P
to settle her debts. Ms. TSANG submitted that D acknowledges her actions
Q were wrong and takes full responsibility. She fully co-operated with the Q
police and admitted to the offences under caution. She expressed remorse
R R
and resolved to turn over a new leaf, and begs the Court for leniency. Ms.
S TSANG submitted mitigation letters written by D and her mother in S
support of D’s mitigation.
T T
U U
V V
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A A
B B
16. Ms. TSANG further submitted that D has saved the Court
C considerable time and costs by pleading guilty to the Charges. Accepting C
1
the principle as stated by the Court of Appeal in HKSAR v Lo Kam Fai
D D
she submitted that unlike the appellant in that case, D had never indicated
E that she intended to plead not guilty in either of the 2 cases. She submitted E
it is within the discretion of the Court to accord to D the full 1/3 discount
F F
for her guilty pleas.
G G
17. So far as the Burglary Charge is concerned, Ms. TSANG
H H
submitted that it involved non-domestic premises, with a usual starting
I point of 30 months, citing R v Chan Yui Man 2 , R v Wong Man 3 and I
HKSAR v Sim Ka Wing 4 in support. She urged the Court to take into
J J
account that D acted alone, not involving obvious degree of planning or
K skillful execution by specialist or heavy equipment, and that the Café was K
unoccupied at the time of the offence.
L L
M 18. Ms. TSANG accepted that the case could be regarded as a M
breach of trust by an ex-employee, but urged the Court not to impose an
N N
enhancement of sentence, or at most a modest enhancement of no more
O than 3 months, citing HKSAR v Chen Ting Fang5 in support. O
P P
19. In relation to the Theft Charge, Ms. TSANG, citing HKSAR
Q Q
1
R [2016] 2 HKLRD 308 R
2
unrep. CACC 36/1988
S 3 S
unrep. CACC 372/1992
4
unrep. CACC 450/2000
T T
5
unrep. CACC 221/2007
U U
V V
-7-
A A
B B
v Yu Chi Chiu 6 , submitted that the usual starting point is 3 years
C imprisonment. She also referred to paragraphs 10 & 12 of the Judgment of C
this case where the Court of Appeal stated the reasons why “Theft of
D D
Vehicle” is considered to be a serious offence.
E E
20. Ms. TSANG submitted that D’s father had been working for
F F
Kent Metal, owner of the LGV, for over 30 years, with the final 10 years
G as a supervisor. In 2015, the company bought the LGV and assigned it to G
him for full-time use. He had personally chosen the model and colour. It
H H
was parked in an open area adjacent to his residence. He would use it for
I both business and personal affairs. As such, D had been under the I
misconception that it had been given to him by the company as a gift.
J J
K 21. In 2017, D’s father was diagnosed with late-stage cancer. By K
the time of the offence, he had been an in-patient at the hospital for several
L L
months, and the LGV had not been in use. As such, Ms. TSANG submitted,
M the impact of the theft of this LGV caused to the company was financial M
loss only, and that the usual aggravating factors justifying a 3-year starting
N N
point feature less prominently in the present case, and invited the Court to
O adopt a lower starting point. O
P P
22. Ms. TSANG also informed the Court that D had been
Q repaying the company periodically at around HK$3,000 per month, and Q
had so far repaid HK$27,000. This is confirmed by the Prosecution.
R R
S Sentence S
T T
6
[2017] 1 HKLRD 400
U U
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A A
B B
C 23. From the information before me, it is obvious that D’s C
gambling addiction is the source of all evils. She had a clear record when
D D
committing the present offences. It is hoped that she meant what she said
E in her mitigation letter. She is obviously at a cross-road of her life. I will E
be as lenient as possible in assessing the sentences to be imposed on her in
F F
the present cases.
G G
The Burglary Charge
H H
I 24. It is well established that the starting point for “Burglary” I
involving non-domestic premises is 30 months. Ms. TSANG also rightly
J J
conceded that the present case involves an element of breach of trust, so
K that the starting point should be adjusted upwards. K
L L
25. The amount of money involved is HK$21,800, and no other
M aggravating features are present in the present case. For the breach of trust, M
I will enhance the starting point by 3 months, to 33 months.
N N
O 26. In Lo Kam Fai 7 , the Court of Appeal stated that where a O
defendant had absconded whilst on bail, he would not be entitled to the
P P
usual 1/3 discount for a guilty plea upon re-arrest as this is not regarded as
Q a ‘timely’ plea, but only be entitled to a discount of 20-25%. Q
R R
27. In respect of this Charge, Ms. TSANG had not submitted any
S reasonable excuse on behalf of D warranting a departure from this principle. S
T T
7
Supra.
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A A
B B
I do not accept her plea on behalf of D for a full 1/3 discount for the guilty
C plea. C
D D
28. For the above reasons, for the Burglary Charge, I adopt a
E starting point of 33 months, reduce it by 8 months to 25 months for the E
guilty plea. Considering that D had a clear record when she committed this
F F
offence, I will further reduce the sentence by 3 months to 22 months.
G G
The Theft Charge
H H
I 29. In Yu Chi Chiu, when indicating a starting point of 3 years to I
be appropriate for an offence of “Theft of Vehicle”, the Court of Appeal
J J
pointed out the reasons thereof as follows:
K (1) Regardless of the make/model of vehicle, it is a valuable property K
worth a lot of money.
(2) A vehicle is also a private space that occasionally or even
L permanently stores all sorts of items that bear personal data and/or L
tend to expose confidential information (e.g. phones, name cards,
M different types of documents/letters, and all types of memory cards M
or access cards).
(3) A vehicle is often parked in the public place, making it prone to
N be a target of theft. N
(4) To the owner of a private vehicle, the loss of his vehicle will cause
him great inconvenience as he will lose his means of transportation.
O O
And when a vehicle is used for a commercial or work purpose, the
loss of it means that the owner will lose his paraphernalia for making
P money, which in turn will cause additional economic loss or even P
affect his livelihood.8
Q Q
30. I accept the submissions by Ms. TSANG that some of the
R R
features as mentioned by the Court of Appeal are not present in the context
S
of the present case. The LGV was used by D’s father, who had been in S
T T
8
ibid, 406 paragraph 10
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A A
B B
hospital for late-stage cancer and the vehicle was left unused for a while.
C She might have had an impression that it belonged to him instead of his C
employer, that she had emptied the vehicle before selling it, and that it was
D D
parked at the courtyard outside his residence. I will adopt a lower starting
E point of 30 months for this offence. E
F F
31. One of the strong mitigating factors in this case is the fact that
G D had, on her own accord, repaid the company HK$27,000. Ms. LAI for G
the prosecution informed me that the purchase price of the LGV in 2015
H H
was HK$300,000. There is no information before me as to its value at the
I time of the commission of this offence in August 2018. D said she sold it I
at HK$34,000, so I can assume that it would have worthed at least this
J J
amount. In the circumstances, D had, by way of restitution on her own
K accord after the commission of the offence, repaid almost 80% of the loss K
suffered by the owner.
L L
M 32. Restitution has always been recognised as a strong mitigating M
factor9 . In the present case, although the restitution was not in full, I am
N N
prepared to reduce the sentence by 3 months for this factor alone.
O O
33. I repeat paragraphs 26 and 27 above regarding the effect of
P P
the guilty plea. For the Theft Charge, I adopt 30 months as the starting
Q point, reduce it by 8 months for the guilty plea to 22 months, and reduce it Q
further by 3 months for the restitution, to 19 months.
R R
S S
T 9
see e.g., HKSAR v Leung Shuk Man, unrep. CACC 230/2001 and HKSAR v Chiu Peng [2002] 1 T
HKLRD 185, 191B-192D, 194C-G.
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A A
B B
Totality
C C
34. I have to further consider the totality principle. I consider a
D total sentence of 30 months would be sufficient to reflect the overall D
criminality of D.
E E
F Conclusion F
G G
35. For the 2 offences D has pleaded guilty to, she is sentenced as
H follows: H
DCCC 326/2019 Burglary : 22 months
I I
DCCC 635/2019 Theft : 19 months, 8 months to run consecutively to
J the sentence in DCCC 326/2019 J
K K
L L
M M
N ( Bernard Chung ) N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 326/2019 & 635/2019 (Heard together)
[2024] HKDC 953
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 326 OF 2019 AND 635 OF 2019
F F
(HEARD TOGETHER)
G G
------------------------------
H HKSAR H
v
I I
CHAN Wan-chi, Jenny Defendant
J ------------------------------ J
K K
L Before: Deputy District Judge Bernard Chung L
Date: 13 June 2024
M M
Present: Ms. Karinna Lai, Public Prosecutor, for HKSAR
N N
Ms. Emma Tsang, instructed by Messrs Wat & Co., assigned
O
by the Director of Legal Aid, for the Defendant O
Offence: DCCC 326/2019: [1] Burglary (入屋犯法罪)
P P
DCCC 635/2019: [1] Theft (盜竊罪)
Q Q
-----------------------------------------
R R
REASONS FOR SENTENCE
S ----------------------------------------- S
T T
U U
V V
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A A
B B
1. The defendant CHAN Wan-chi, Jenny (D) faces 2 separate
C Charge Sheets in DCCC 326/2019 and DCCC 635/2019, each containing C
2 Charges.
D D
E 2. In DCCC 326/2019 she is charged with: E
(1) Burglary, contrary to section 11(1)(b) and (4) of the Theft
F F
Ordinance, Cap.210. Particulars of Offence stated that on 25
G May 2018 she entered as a trespasser part of a building known G
as “Olive Café”, situated at Shop No. 12, Ground Floor, Zone
H H
A, Tai Po Mega Mall, No. 9 On Pong Road, Tai Po, and stole
I therein cash HK$21,800 (The Burglary Charge). I
(2) Failing to surrender to custody without reasonable cause,
J J
contrary to section 9L(1) and (3) of the Criminal Procedure
K Ordinance, Cap.221. Particulars of Offence stated that on 5 K
September 2019, being a person admitted to bail, without
L L
reasonable cause, failed to surrender to custody as had been
M appointed by a court (The Absconding Charge). M
N N
3. In DCCC 635/2019 she is charged with:
O (1) Theft, contrary to section 9 of the Theft Ordinance, Cap.210. O
Particulars of Offence stated that on 3 August 2018 at outside
P P
No.313 Kwan Tei Tsuen, Sha Tau Kok Road-Lung Yeuk Tau,
Q Fanling, she stole one light goods vehicle bearing registration Q
mark MT3386, belonging to KENT METAL COMPANY
R R
LIMITED (The Theft Charge).
S (2) Failing to surrender to custody without reasonable cause, S
contrary to section 9L(1) and (3) of the Criminal Procedure
T T
Ordinance, Cap.221. Particulars of Offence were the same as
U U
V V
-3-
A A
B B
stated in Charge 2 of DCCC 326/2019 above (The
C Absconding Charge). C
D D
4. She pleaded guilty before me to the Burglary Charge and the
E Theft Charge. On the application by the Prosecution, I order that the E
Absconding Charges on both Charge Sheets be left on Court File and not
F F
be proceeded with without the leave from the Court.
G G
Facts of Case
H H
I 5. The following facts are admitted by D. I
J J
The Burglary Charge
K K
6. In the morning of 26 May 2018, staff of “Olive Café” situated
L L
at the address as particularized in the Charge discovered that HK$8,000
M inside a safe, HK$12,000 inside the cashier and HK$1,800 inside a locked M
cabinet had gone missing. CCTV installed at the Café captured D entering
N N
the Café with a key at around 11:44 pm on 25 May 2018, using password
O to open the safe and the cashier with a key and stole the said cash therein. O
D then locked the safe, the cashier and the front entrance before leaving.
P P
Q 7. D was employed as the manager of the Café between Q
December 2017 and April 2018. She was supposed to have returned the
R R
keys to the management upon her leaving the job but she did not.
S S
8. D was put on the police “Wanted Persons List” and was
T T
arrested on 2 February 2019. Under caution, she admitted the offence,
U U
V V
-4-
A A
B B
saying that she was in dire financial difficulties. She discarded the keys in
C a nearby garbage bin after the offence and used the proceeds to repay her C
debts.
D D
E 9. She was put on Court bail and was to appear on 5 September E
2019. She did not appear in Court as required, only to be re-arrested on 7
F F
April 2023.
G G
The Theft Charge
H H
I 10. Light Goods Vehicle bearing registration number MT3386 I
(the LGV) belonged to Kent Metal Company Limited, the employer of D’s
J J
father. This vehicle was assigned to D’s father for his use, and was parked
K at the open area outside his residence at the location as particularized in the K
Charge.
L L
M 11. On 11 August 2018, D’s mother found that the car key of the M
LGV which was placed on the desk inside the premises had gone missing.
N N
CCTV installed outside the residence captured D appearing at around noon
O on 3 August 2018 at the open space outside the residence and drove the O
LGV away. Since then, D became out of contact.
P P
Q 12. D was arrested on 2 February, 2019. She admitted under Q
caution that she stole the LGV as she was out of money. She sold it to an
R R
unknown male for HK$34,000 and had spent them all already.
S S
13. She was put on Court bail and was to appear on 5 September
T T
2019. She did not appear in Court as required, only to be re-arrested on 7
U U
V V
-5-
A A
B B
April 2023.
C C
Defendant’s Backgrounds and Mitigation
D D
E 14. D is 41 years old, born in Hong Kong on 25 January 1983. E
She received up to Form 5 education. She used to work as a restaurant
F F
manager and later worked in a logistics company as an assistant in the
G human resources department earning around HK$14,000 per month. She G
also took up part-time work as a waitress earning around HK$65 per hour.
H H
She is single and resided with her family at the address as stated in the
I Theft Charge. She has 3 previous Convictions, 2 for “Gambling in a I
Gambling Establishment” for which she was fined, and 1 for “Theft” with
J J
a 1 month suspended sentence imposed. These offences all occurred
K subsequent to the 2 offences under consideration, therefore, she had a clear K
record when she committed the present 2 offences.
L L
M 15. Ms. TSANG representing D submitted in mitigation that as a M
result of a broken relationship, D lost the motivation to work and developed
N N
a gambling habit as an escapism, leading eventually to her borrowing from
O money lenders. When debt collectors threatened to disturb her family O
members, out of desperation, she committed the present offences in order
P P
to settle her debts. Ms. TSANG submitted that D acknowledges her actions
Q were wrong and takes full responsibility. She fully co-operated with the Q
police and admitted to the offences under caution. She expressed remorse
R R
and resolved to turn over a new leaf, and begs the Court for leniency. Ms.
S TSANG submitted mitigation letters written by D and her mother in S
support of D’s mitigation.
T T
U U
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A A
B B
16. Ms. TSANG further submitted that D has saved the Court
C considerable time and costs by pleading guilty to the Charges. Accepting C
1
the principle as stated by the Court of Appeal in HKSAR v Lo Kam Fai
D D
she submitted that unlike the appellant in that case, D had never indicated
E that she intended to plead not guilty in either of the 2 cases. She submitted E
it is within the discretion of the Court to accord to D the full 1/3 discount
F F
for her guilty pleas.
G G
17. So far as the Burglary Charge is concerned, Ms. TSANG
H H
submitted that it involved non-domestic premises, with a usual starting
I point of 30 months, citing R v Chan Yui Man 2 , R v Wong Man 3 and I
HKSAR v Sim Ka Wing 4 in support. She urged the Court to take into
J J
account that D acted alone, not involving obvious degree of planning or
K skillful execution by specialist or heavy equipment, and that the Café was K
unoccupied at the time of the offence.
L L
M 18. Ms. TSANG accepted that the case could be regarded as a M
breach of trust by an ex-employee, but urged the Court not to impose an
N N
enhancement of sentence, or at most a modest enhancement of no more
O than 3 months, citing HKSAR v Chen Ting Fang5 in support. O
P P
19. In relation to the Theft Charge, Ms. TSANG, citing HKSAR
Q Q
1
R [2016] 2 HKLRD 308 R
2
unrep. CACC 36/1988
S 3 S
unrep. CACC 372/1992
4
unrep. CACC 450/2000
T T
5
unrep. CACC 221/2007
U U
V V
-7-
A A
B B
v Yu Chi Chiu 6 , submitted that the usual starting point is 3 years
C imprisonment. She also referred to paragraphs 10 & 12 of the Judgment of C
this case where the Court of Appeal stated the reasons why “Theft of
D D
Vehicle” is considered to be a serious offence.
E E
20. Ms. TSANG submitted that D’s father had been working for
F F
Kent Metal, owner of the LGV, for over 30 years, with the final 10 years
G as a supervisor. In 2015, the company bought the LGV and assigned it to G
him for full-time use. He had personally chosen the model and colour. It
H H
was parked in an open area adjacent to his residence. He would use it for
I both business and personal affairs. As such, D had been under the I
misconception that it had been given to him by the company as a gift.
J J
K 21. In 2017, D’s father was diagnosed with late-stage cancer. By K
the time of the offence, he had been an in-patient at the hospital for several
L L
months, and the LGV had not been in use. As such, Ms. TSANG submitted,
M the impact of the theft of this LGV caused to the company was financial M
loss only, and that the usual aggravating factors justifying a 3-year starting
N N
point feature less prominently in the present case, and invited the Court to
O adopt a lower starting point. O
P P
22. Ms. TSANG also informed the Court that D had been
Q repaying the company periodically at around HK$3,000 per month, and Q
had so far repaid HK$27,000. This is confirmed by the Prosecution.
R R
S Sentence S
T T
6
[2017] 1 HKLRD 400
U U
V V
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A A
B B
C 23. From the information before me, it is obvious that D’s C
gambling addiction is the source of all evils. She had a clear record when
D D
committing the present offences. It is hoped that she meant what she said
E in her mitigation letter. She is obviously at a cross-road of her life. I will E
be as lenient as possible in assessing the sentences to be imposed on her in
F F
the present cases.
G G
The Burglary Charge
H H
I 24. It is well established that the starting point for “Burglary” I
involving non-domestic premises is 30 months. Ms. TSANG also rightly
J J
conceded that the present case involves an element of breach of trust, so
K that the starting point should be adjusted upwards. K
L L
25. The amount of money involved is HK$21,800, and no other
M aggravating features are present in the present case. For the breach of trust, M
I will enhance the starting point by 3 months, to 33 months.
N N
O 26. In Lo Kam Fai 7 , the Court of Appeal stated that where a O
defendant had absconded whilst on bail, he would not be entitled to the
P P
usual 1/3 discount for a guilty plea upon re-arrest as this is not regarded as
Q a ‘timely’ plea, but only be entitled to a discount of 20-25%. Q
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27. In respect of this Charge, Ms. TSANG had not submitted any
S reasonable excuse on behalf of D warranting a departure from this principle. S
T T
7
Supra.
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A A
B B
I do not accept her plea on behalf of D for a full 1/3 discount for the guilty
C plea. C
D D
28. For the above reasons, for the Burglary Charge, I adopt a
E starting point of 33 months, reduce it by 8 months to 25 months for the E
guilty plea. Considering that D had a clear record when she committed this
F F
offence, I will further reduce the sentence by 3 months to 22 months.
G G
The Theft Charge
H H
I 29. In Yu Chi Chiu, when indicating a starting point of 3 years to I
be appropriate for an offence of “Theft of Vehicle”, the Court of Appeal
J J
pointed out the reasons thereof as follows:
K (1) Regardless of the make/model of vehicle, it is a valuable property K
worth a lot of money.
(2) A vehicle is also a private space that occasionally or even
L permanently stores all sorts of items that bear personal data and/or L
tend to expose confidential information (e.g. phones, name cards,
M different types of documents/letters, and all types of memory cards M
or access cards).
(3) A vehicle is often parked in the public place, making it prone to
N be a target of theft. N
(4) To the owner of a private vehicle, the loss of his vehicle will cause
him great inconvenience as he will lose his means of transportation.
O O
And when a vehicle is used for a commercial or work purpose, the
loss of it means that the owner will lose his paraphernalia for making
P money, which in turn will cause additional economic loss or even P
affect his livelihood.8
Q Q
30. I accept the submissions by Ms. TSANG that some of the
R R
features as mentioned by the Court of Appeal are not present in the context
S
of the present case. The LGV was used by D’s father, who had been in S
T T
8
ibid, 406 paragraph 10
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V V
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A A
B B
hospital for late-stage cancer and the vehicle was left unused for a while.
C She might have had an impression that it belonged to him instead of his C
employer, that she had emptied the vehicle before selling it, and that it was
D D
parked at the courtyard outside his residence. I will adopt a lower starting
E point of 30 months for this offence. E
F F
31. One of the strong mitigating factors in this case is the fact that
G D had, on her own accord, repaid the company HK$27,000. Ms. LAI for G
the prosecution informed me that the purchase price of the LGV in 2015
H H
was HK$300,000. There is no information before me as to its value at the
I time of the commission of this offence in August 2018. D said she sold it I
at HK$34,000, so I can assume that it would have worthed at least this
J J
amount. In the circumstances, D had, by way of restitution on her own
K accord after the commission of the offence, repaid almost 80% of the loss K
suffered by the owner.
L L
M 32. Restitution has always been recognised as a strong mitigating M
factor9 . In the present case, although the restitution was not in full, I am
N N
prepared to reduce the sentence by 3 months for this factor alone.
O O
33. I repeat paragraphs 26 and 27 above regarding the effect of
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the guilty plea. For the Theft Charge, I adopt 30 months as the starting
Q point, reduce it by 8 months for the guilty plea to 22 months, and reduce it Q
further by 3 months for the restitution, to 19 months.
R R
S S
T 9
see e.g., HKSAR v Leung Shuk Man, unrep. CACC 230/2001 and HKSAR v Chiu Peng [2002] 1 T
HKLRD 185, 191B-192D, 194C-G.
U U
V V
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A A
B B
Totality
C C
34. I have to further consider the totality principle. I consider a
D total sentence of 30 months would be sufficient to reflect the overall D
criminality of D.
E E
F Conclusion F
G G
35. For the 2 offences D has pleaded guilty to, she is sentenced as
H follows: H
DCCC 326/2019 Burglary : 22 months
I I
DCCC 635/2019 Theft : 19 months, 8 months to run consecutively to
J the sentence in DCCC 326/2019 J
K K
L L
M M
N ( Bernard Chung ) N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V