HKSAR v. RABARA BOBBY

DCCC 830/2020

[2021] HKDC 1321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 830 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to 2 counts of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Admitted Summary of Facts

2.  The summary of facts admitted by the Defendant are as follows:-

(1)  PW1 is the manager of ABC Pathways International Kindergarten (ABC)  which is situated at Shop No 25, Ground Floor, Site 11, Whampoa Garden, No 6 Tak Hong Street, Hung Hom, Kowloon (the Premises). ABC operates between 8:00 a.m. and 5:30 p.m. on Mondays to Fridays; and between 9:00 a.m. and 2:00 p.m. on Saturdays.

(2)  At around 7:00 p.m. on 18 June 2020, PW1 confirmed that all the doors of ABC were locked before departing therefrom. Upon return at around 9:00 a.m. on 19 June 2020, PW1 noticed that the following items were missing:-

(a)  One black and white penguin-shaped pencil bag (Stolen Property 1);

(b)  One blue transparent zipper bag (Stolen Property 2)  containing some miscellaneous items and one red packet containing one HK$20 banknote (Stolen Property 3); and

(c)  One black loud hailer (Stolen Property 4), the value of which is HK$1,500.

(3)  After viewing CCTV footages capturing the inside of ABC, PW1 found that a man (later known and ascertained to be the Defendant)  had entered ABC from the back door as particularized below:

(a)  On 18 June 2020, the Defendant entered at around 7:43 p.m., stole Stolen Property 1, and left at around 7:44 p.m. (1^st Entry). Afterwards, at around 7:47 p.m., the Defendant entered again, stole Stolen Properties 2-3, and left at around 7:50 p.m. on the same day (2^nd Entry)  (Charge 1); and

(b)  On 19 June 2020, the Defendant entered at around 1:32 a.m., stole Stolen Property 4, and left approximately within the same minute (Charge 2).

(4)  CCTV cameras installed at the area outside the back door of ABC by Treasure World captured the Defendant (wearing a black bucket hat, in a T-shirt, a pair of camouflage shorts and a pair of sports shoes)  as follows:-

At the material time of Charge 1

(a)  The Defendant walked out from the back door of ABC holding Stolen Property 1. He then opened the door of the rear staircase of Treasure World and went to the rear staircase (where Stolen Property 1 was later recovered by the police);

(b)  The Defendant took Stolen Property 3 out of Stolen Property 2 and disposed of Stolen Property 2 into a carton. Stolen Property 2 was also later recovered by the police.

At the material time of Charge 2

(c)  The Defendant held Stolen Property 4 in his hands, walked out from the back door of ABC, and entered the emergency exit of Treasure World.

(5)  PW1 reported the case to the police on 19 June 2020. On 19 June 2020 and 20 June 2020, WPC 25491 (PW2)  and PC 33322 (PW3)  viewed the relevant CCTV footages.

(6)  On 20 June 2020 at around 4:00 p.m., PW2 and PC 13859 (PW4)  were patrolling at Ming On Street, Hung Hom. They spotted the Defendant in similar clothing as depicted in the CCTV footages. The Defendant was then intercepted. Upon enquiry, the Defendant admitted that he had entered ABC at the material times and had already sold Stolen Property 4. The Defendant was thus arrested for burglary at 4:10 p.m. on the same day.

(7)  From 7:32 p.m. to 9:18 p.m. on the same day, in the presence of interpreters, PW4 conducted a cautioned interview at Hung Hom police station with the Defendant. Under caution, the Defendant admitted that he had stolen Stolen Properties 3-4 from ABC as he lacked money (I stole that laisee packet of HK$20 and that loud speaker from that school because I’m short of money, but I can’t use the speaker).

(8)  The cautioned admission was post-recorded by PW4 in a written record of interview and was signed by the Defendant affirming its accuracy and volutariness.

(9)  Upon a house search at the Defendant’s place of residence (with his consent), the police found one black and silver shoulder bag (Exh 2), one black bucket hat (Exh 1), one T-shirt (Exh 6), one pair of camouflage shorts (Exh 7)  and one pair of sports shoes (Exh 8)  (collectively the Defendant’s outfit).

(10)  On 21 June 2020, a video-recorded interview was conducted with the Defendant, who was under caution and in the presence of interpreters. In the course of the interview, the Defendant admitted, inter alia, that:

(a)  He entered ABC via the back door as it was not properly locked;

(b)  He knew the Premises was not an abandoned place;

(c)  He entered ABC to see if there was anything he could take away and sell;

(d)  During the 1^st Entry, he spotted Stolen Property 4 which he was interested in;

(e)  He took away Stolen Property 2 from ABC and found Stolen Property 3 inside, which contained a HK$20 banknote;

(f)  He took away the HK$20 banknote and disposed of Stolen Property 2 outside ABC;

(g)  He took away Stolen Property 1 from ABC but later disposed of it at the back door of ABC;

(h)  He left ABC after the 1^st and 2^nd entries on 18 June for Hung Hom and spent the HK$20 banknote;

(i)  He deliberately returned to ABC to take away Stolen Property 4 on 19 June 2020;

(j)  He took away Stolen Property 4 from ABC by using a trolley which he randomly picked up at the back door of ABC and later disposed of the same;

(k)  He sold Stolen Property 4 to an unknown male for HK$30 and borrowed HK$20 from him;

(l)  He then spent the HK$50 on cigarettes and drinks;

(m)  Upon being shown the Defendant’s outfit, he positively identified the same to be the clothes and/or items worn by him at the material times of Charges 1 and 2;

(n)  He knew that he was burgling ABC at the material times; and

(o)  He was aware that Stolen Properties 1-4 were properties belonging to another.

(11)  Stolen Properties 3 and 4 were uninsured and remain unrecovered.

(12)  At the material times of Charge 1, the Defendant having entered ABC which is part of a building as a trespasser, stole one bag and one zipper bag (containing some miscellaneous items and one red packet containing cash of HK$20 Hong Kong currency)  therein.

(13)  At the material time of Charge 2, the Defendant having entered ABC which is part of a building as a trespasser, stole one loud hailer therein.

Applicable Legal Principles

3.  The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment: R v Wong Man unrep CACC 372/1992.

4.  The starting point can be adjusted upwards if there are aggravating circumstances such as (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous convictions of similar nature; and (6)  the offender commits multiple offences.

The Defendant’s Background

5.  The Defendant is 44 years old and was originally from the Philippines.  He was educated up to secondary school level.  He came to Hong Kong to reunite with his parents.  He is a permanent resident in Hong Kong and has been living here since 1996.

6.  The Defendant is married and has 2 children.  His wife is 47 years old and works as a waitress.  He has a daughter and a son, aged 9 and 14 years old respectively.

7.  The Defendant has 3 convictions for theft, the last two convictions were for offences committed after the present offences and whilst on bail.

Discussion

8.  Counsel submitted that the burgled premises were non-domestic in nature and there was a lower possibility of the occupant being confronted with the Defendant’s presence.  This fact is already taken into account in a lower starting point for burglary of non-domestic premises. There is no dispute that this is not further mitigation.

9.  I accept that apart from a previous conviction for theft, there are none of the aggravating features mentioned in HKSAR v Cheng Wai Kai CACC 338/2007.  However, I do not accept that this case is akin to a sneak theft walking into an open office to steal.  According to PW1, she confirmed that all the doors were locked before she left ABC.  Even according to the Defendant, the back door of ABC was locked.  His case is that it was not locked properly.

10.  The Court accepts that this case is at the lower end of the spectrum for burglary cases.  I do not see any reason to depart from the sentencing guideline, i.e. a starting point of 30 months for each offence. The Defendant had one previous conviction for theft prior to the present offences and that is not sufficient to warrant an enhancement of the starting point.  The Defendant went on to commit further similar offences whilst on bail of the present case.  This should have been pointed out to the magistrate dealing with KCCC1128/2021 and KCCC 22/2021.

11.  A mitigation letter written by the Defendant has been submitted to the Court.  He explained that he committed these offences to support his family.  This is clearly contradictory to the fact that his wife works to support the family and he was a house husband.  It is also contradictory to his behavior.  All the proceeds of the present offences were spent by the Defendant on himself, namely on drinks and cigarettes.

12.  In short, there are no mitigating factors apart from his guilty plea.  I adopt a starting point of 30 months for each offence.  The Defendant has pleaded guilty at the very first opportunity and is entitled to a full one third discount.  The sentence for each charge is reduced to 20 months’ imprisonment.

Totality

13.  The Court appreciates that the Defendant has pleaded guilty to 2 charges.  However, both offences related to the same premises and there were only a few hours between the 2 charges.  Having regard to the overall criminality of the two offences, in my judgment, an overall staring point of 30 months would be appropriate.  Accordingly, I order that the sentence for both charges to be served concurrently, i.e. a total sentence of 20 months.