HKSAR v. ATREYA BONEY

DCCC 349/2023

[2023] HKDC 1825

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 349 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges of Burglary before me.

2.  These offences took place between 27 August 2022 and 28 August 2022 at 3 different schools in Yuen Long.

Charge 1

3.  According to the prosecution case, the defendant climbed over the iron fence and later on entered into two classrooms inside School 1 on 27 August 2022.  He stayed and ransacked the places for approximately 55 minutes at midnight.

4.  Upon checking, a pair of Bluetooth earphones, 40 red packets containing a total of HK$3,000 cash and a hard disk were stolen. The total loss was estimated to be HK$4,800.

Charges 2 and 3

5.  CCTV of School 2 showed that the defendant climbed over the fence and got into it.  He again stayed for about 55 minutes at midnight and was depicted to have carried 3 laptop computer bags which, together with 3 T-shirts and a polisher, total value being HK$37,410, were the missing items identified by the School after the incident.

6.  CCTV of School 3 also showed that the defendant climbed into a classroom at 0504 hours and left at 0610 hours.  There were signs of ransacking and the following items were stolen:-

(a)  3 mobile phones;

(b)  a blue jacket;

(c)  2 laptop computers;

(d)  HK$200 cash.

(Total value: HK$27,400)

The Arrest

7.  On 28 August 2022, the defendant was arrested in a case of “Criminal Damage”.  He was found to be closely resembling to the burglar in the aforesaid CCTV footages.  As such, the defendant was cautioned for Offences 1-3 and he admitted to committing all the 3 offences.  He claimed that he had put all the stolen properties at an amusement game centre in Yuen Long.  Later on, two mobile phones (the stolen properties in Offence 3)  were recovered on the defendant.

8.  Based on the above, the defendant admitted that he had committed the 3 charges in the present case.

Mitigation

9.  In mitigation, it was stressed that “(a)  there was no damage done; (b)  there was no property of very high value; and (c)  nothing un-replaceable or of sentimental attachment was lost”[1].

10.  Apart from the background of the defendant, it was highlighted that this case is the first offence the defendant had committed that had involved dishonesty.  The defendant was driven to commit the offences in the present case only because of his inability to find a job during a difficult moment.

11.  On the other hand, the Defence relied on the post-arrest conduct of the defendant[2] which suffice it to say, does not warrant the usual level of discount; the parties also confirmed that no special procedure is required to deal with that matter, yet the Defence suggested that certain reduction would well be justified.

12.  Lastly, the Defence relied on a mitigation letter and asked me to accept that the defendant is genuinely remorseful.

The Sentence

13.  Having carefully considered, I accept that the usual starting point of 2.5 years (i.e. 30 months)  for each offence is appropriate.  I do not intend to increase it because of the previous convictions of the defendant when, as mentioned above, this is the first case of the defendant that involves the element of dishonesty.

14.  However, this case involves multiple transgressions within a short period of time and the Defence Counsel fairly accepted that this alone is an aggravating factor.  I shall increase the 30-month starting point for Charge 2 and that for Charge 3 to 33-month.  The guilty plea makes them a 22-month term of imprisonment.

15.  I take that this case shall call for an overall 27 months’ imprisonment, because it is important to take into account the totality principle and that a partial consecutive sentence should not fail to factor in the increase already made on account of the aggravating factor for the commission of multiple offences. On the other hand, the fact that there were different victims causes me to think that it is inappropriate to order a wholly concurrent sentence.

16.  I also accept the mitigations and the additional reduction is justified for the post-arrest conduct of the defendant.  I shall not elaborate further saved that the reduction in this regard shall not be very significant. 

17.  In my judgment, the overall sentence in this case should be reduced to a term of 24 months’ imprisonment.  This is arrived at by way of the following formula:

Charge 1: 20 months

Charge 2: 22 months

Charge 3: 22 months

2 months in Charges 2 and 3 to be consecutive to each other and the sentence for Charge 1, making it a total of 24 months’ imprisonment (i.e. 20 + 2 + 2 = 24).