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DCCC 1176/2023
[2024] HKDC 1166
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1176 OF 2023
________________________
________________________
| Before: |
H.H. Judge G. Lam |
| Present: |
Ms. Herriatta Lai, PP, of the Department of Justice, for HKSAR. |
| |
Mr. But Sun Wai instructed by M/s Jackson Ho & Co., assigned by the Director of Legal Aid, for the defendant. |
REASONS FOR SENTENCE
The defendant pleaded guilty to a charge of "Burglary". He burgled a restaurant situated at Shop No.1, Ground Floor, New Fortune House, Nos.3-5 New Praya, Kennedy Town ("the Restaurant").
Summary of Facts
2. Mr. Chan (PW1) was the owner of the Restaurant. In the morning on 12 May 2023, an employee of PW1 informed him that the Restaurant's rear door having been prized open. He returned to the Restaurant and discovered that the cash register (in the size of 10 cm x 30 cm x 35 cm; "the Cash Register") and the $2,000 cash contained inside were missing from the cashier counter. The Police was alerted.
3. DPC 11591 later found the Cash Register on the 3rd Floor, No.28 Hau Wo Street, Kennedy Town ("the Building"); however, the cash contained inside was missing.
4. On 10 June 2023, WPC 26531 stopped the defendant for enquiry at Sai Yeung Choi Street South near Argyle Street in Mongkok. She arrested and cautioned the defendant for "Burglary". An Octopus card No.28493721 ("the Octopus Card") was found on the defendant.
5. CCTV footage of No.43 Catchick Street, Kennedy Town captured the defendant appearing near the Restaurant's rear door around 3:33 a.m. on 12 May 2023. He left after about 2 minutes. He returned and entered the Restaurant through its rear door around 3:37. He came out around 3:42 a.m. carrying the Cash Register in his right hand.
6. CCTV footage of Nos.6-18 Hau Wo Street, Kennedy Town captured the defendant meeting a female near the junction of Smithfield and Hau Wo Street around 3:46 a.m. on 12 May 2023. They walked along Hau Wo Street westbound. The defendant was carrying a cardboard box without lid which contained the Cash Register.
7. CCTV footage also captured the defendant and the female entering the Building around 3:47 a.m. on 12 May 2023, whereas the defendant was carrying the cardboard box which contained the Cash Register. The defendant and the female left the Building around 3:56 a.m. on the same day. Whilst in the lift, the female took out a wad of banknotes from her trouser pocket and counted them briefly.
8. Other CCTV footage captured the defendant travelling from Kennedy Town to Tung Choi Street, Mongkok. CCTV footage of a bus (Route No.N118) showed the defendant using the Octopus Card to ride the bus at 4:49 a.m. on 12 May 2023. Transaction records confirmed the same.
Mitigation & Sentence
9. The defendant is 49 and has 24 conviction records, which included 6 "Theft" offences and 6 "Burglary" offences. His counsel Mr. But informed me that the defendant has a son (aged 15) with his girlfriend. They reside together with the defendant's mother (aged 70). The defendant was a skilled construction worker and holds 4 types of licence (bar bending, cement handling, elevating platforms operation and forklift operation).
10. In mitigation, Mr. But submitted that the defendant was a drug addict and his girlfriend, a mental patient. His employment was limited and unstable during the pandemic. During his remand in jail custody, the defendant has managed to get rid of his drug habit. He is determined to turn a new leaf. He will work hard upon release.
11. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The defendant has no one but himself to blame for his drug addiction. Having various specialty licences, the defendant should be able to earn a reasonable income if he stays focused on his work and family.
12. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. In the present case, the defendant acted alone and the cash stolen is not a significant amount. On the other hand, he is no doubt a repeated offender of "Burglary" offences, whereas his last similar conviction is dated August 2022. Mr. But informed me that the defendant was released from prison in mid-April 2023. Yet, he re-offended shortly after being released. Again, the defendant has no one but himself to blame. I have no choice but to increase the starting point to 3 years' imprisonment for the present charge. With the timely guilty plea, the sentence becomes 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.
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