HKSAR v. RAI KAMAL

DCCC 488/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 488 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary. The particulars show the burglary occurred on 26 April this year at part of a building on the 3rd Floor of No. 15A Saigon Street, Yau Ma Tei, where the defendant stole an electric piano. The premises in question are described in the facts as a storeroom of a restaurant and that is the Siu Lam Seafood Restaurant. The storeroom was secured on 22 April 2014 in the morning at about 11 am. It was not until 28 April that anyone returned to the premises. They found a window and the outer case of an air-conditioner had been dismantled and an electric piano valued at $3,000 had been thrown into the patio, it is described, of the building.

2.  The defendant was arrested the next day on 29 April nearby in the premises.  He immediately told the police officer that he had taken the piano from inside a flat but dropped it because it was too heavy.  He had later made a more full description of this under caution, said he had broken the window of the premises, entered the premises and he dropped the piano because it was too heavy and he had committed the offence because he had no money.  The total damage to the property cost about $1,600 to repair. 

3.  The defendant has admitted those facts.  The antecedent shows that he is a 36 year old man born in Nepal, described as having no fixed address in Hong Kong and is unemployed.  He is single and lives alone.  He has a total of 12 previous appearances in court with offences of dishonesty including theft and an offence of burglary committed in 2012 for which he received 14 months’ imprisonment.  He has been to a Drug Addiction Treatment Centre and I am told that he was released from Hai Ling Chau on 17 January 2014.  So the defendant has a poor record for offences of dishonesty and an aggravating feature in the previous conviction for burglary in 2012 which shows that that previous sentence was not sufficient to deter him from committing this offence. 

4.  As far as the starting point for sentence is concerned there are clear guidelines as to the starting point for sentences of burglary.  A realistic view is that these premises could not be classified as a domestic premises, they are clearly a storeroom of some kind.  The guideline sentence for a person of clear record where there are no mitigating or aggravating features for the burglary of a non-residential premises is a starting point of 30 months’ imprisonment. 

5.  Defence counsel submitted that that is not a hard and fast rule, the court has a discretion as to where to take the starting point for sentence and has to take what is described as a realistic approach as to the nature of the burglary and the kind of premises that are entered.  I have been very helpfully provided with the photographs of the premises and also a photograph of the piano that was taken from the premises. 

6.  In mitigation the counsel told me that the block of flats consist of a number of premises that are empty and in somewhat derelict condition.  The defendant was residing in a squat in a premises across from the premises that he burgled.  The photographs show that the premises are not occupied in any real sense, they are obviously used for occasional storage by the restaurant, they are in very poor condition.  I am told the defendant accessed the premises by climbing through the lightwell from his flat into this flat and then the piano was dropped into the lightwell and that is where it was found.  It is said that as a result of that the court can have some discretion to take a lower starting point than the normal one found in the guideline sentence. 

7.  By taking a view of this case that the appellant is clearly a man of few means living if essentially homeless and squatting in the nearby flat, the burglary of the premises seems to lack any great sophistication and appears to be opportunistic.  The premises were little-used and it was unlikely that any high value items would be found in there, it is also unlikely that anyone would be encountered in the premises. 

8.  Taking all those factors into account, one also has to also consider the factor of the defendant’s previous conviction for a similar offence, that is what would be described as an aggravating factor showing the lack of deterrence in the earlier sentence.  On 29 May, the defendant was sentenced in this court to a sentence of 14 months for burglary.

9.  My decision on this matter is as follows:  Aside from the aggravating factor of the defendant’s previous conviction, I would take a starting point of 21 months’ imprisonment.  The defendant, as I say, has the aggravating factor of a previous conviction for a similar offence so I think the actual starting point for sentence should be one of 27 months’ imprisonment.  The defendant is entitled to a one-third reduction from that for his plea of guilty which leaves a sentence of 18 months’ imprisonment.