HKSAR v. KRISHNAN JAYA

DCCC 586/2024

[2025] HKDC 235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 586 OF 2024

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REASONS FOR SENTENCE

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1.  D1 is convicted of 3 charges of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, on his own plea and agreement to the Summary of Facts.

Facts

2.  At the material times, Best Union (China)  Limited was relocating its office from the 50^th floor of Langham Place.  The office premises was still a private place accessible only to employees.  The office had many working cubicles installed with furniture and computers which had not yet been removed.  PW1 to PW3 were employees of the company working at the office. 

3.  On 29 and 30 January 2024, PW1 to PW3 respectively discovered that cash totalling HK$19,000 kept in their respective working cubicles was missing.  The case was reported. 

4.  CCTV footage of the office premises showed D1 on two occasions alone and on one occasion with a male entered and ransacked the office premises.  The CCTV footage showed that:

(a)  on 28 January 2024 at around 4:51 am, D1 alone entered and ransacked the office (Charge 1);

(b)  on 29 January 2024 at around 1:27 am, D1 alone entered and searched the office (Charge 2); and

(c)  on 29 January 2024 at around 4:45 am, D1 and the male entered and further searched the office (Charge 3).

5.  Both D1 and the male were arrested.  Under caution, D1 admitted that:

(a)  he was greedy and needed to repay his credit card debts, so he went in the office to steal money, and the stolen money was kept in his locker and had not been used (Charge 1);

(b)  he went in the office to steal money, but in fact did not steal anything (Charge 2); and

(c)  he went in the office with the male on that occasion to steal money, but again he left without having stolen anything (Charge 3).

6.  The search of D1’s locker recovered (i)  a folder containing cash of HK$3,050, 120 Thai baht and 155 United Arab Emirates Dirhams, and (ii)  a wallet containing cash HK$2,010 and ¥100 Renminbi. 

7.  D1 admitted that the doors of the office to the cargo lifts were kept unlocked.  He was a security guard responsible for night shift at the Langham Place. For Charge 1, he was on duty when he committed the offence.  He saw the office premises which had many things moved and he went in. He found an envelope and stole the cash of HK$1,700 and also took money from other’s drawers.  For Charges 2 and 3, he claimed that he did not take anything from the office. 

Criminal Record

8.  D1 has a spent conviction of theft back in the year 2009 for which he was fined HK$5,000. 

Mitigation

9.  D1 is now aged 49 and single.  He is educated up to Form 5 level.  After leaving school, he has worked in various jobs.  He lived with his parents in a public housing estate.  His parents are both retired and they suffer from diabetes.  They live on CSSA. 

10.  At the material times, D1 was employed as a security guard earning about HK$20,000 a month and he contributes HK$10,000 to his family.  Because of his spending habit, he had credit card debts of over HK$90,000.  This is worrying to him and at the time of the offence he was on the verge of obtaining loan from loan sharks, and it is why he committed the present offences. 

11.  Defence counsel submitted that D1 pleaded guilty to all the charges at the earliest opportunity and there is genuine remorse.  It is also said that these were opportunistic offences.  D1 committed offence due to greediness to resolve his debt problem.  He apologised sincerely to all victims for the monetary loss although some money was recovered by the police.  He is also shameful for tarnishing his family name in the small ethnic minority community in Hong Kong, which brings humiliation to his parents. 

12.  It is said that since his arrest, D1 was unemployed and is likely unemployable in the future as a security guard.  He is determined to turn a new leaf and to train himself in new areas so that he would be able to start afresh upon his release from prison. 

Discussion

13.  Before sentencing, the court has considered all that was said on behalf of D1. 

14.  When sentencing D1, this court has treated him as a man of clear record. 

15.  It is well established that appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating factor is 2½ years’ imprisonment (HKSAR v Sim Ka Wing, CACC 450/2000). 

16.  This court conceded that there is not much sophistication or serious planning in the commission of the 3 offences. 

17.  Defence counsel submitted that this is an opportunistic crime.  Whilst the facts indicate that the office was not locked at the time as they were in the course of relocation, it must not be forgotten that the company must have thought that the office was safe because of the existence of security guards on duty at all times.  D1 was at the material times employed and on duty as a security guard for the building within which the office premises are situated and for which he had the duty to protect. 

18.  D1 committed the burglary on his tenants whom he was supposed to protect. This is clearly a serious breach of trust case, which amounts to an aggravating feature in sentencing for the 3 offences. 

19.  Having regard to the circumstances of the case, the sentencing starting point for Charges 1 and 2 would be 33 months’ imprisonment. 

20.  For Charge 3, D1 committed the offence with another, which amounts to another aggravating feature in sentencing.  The starting point for this offence is further enhanced by 3 months to 36 months’ imprisonment. 

21.  Defence counsel said D1 and another male did not enter the office together, and it was not pre-planned.  But it is noted from CCTV footage, they searched in the premises together and they left together.  D1 has upon legal advice pleaded guilty to Charge 3, the particulars of offence stated clearly that he and another male committed the offence in question. 

22.  The fact that D1 committed the offence out of greed in order to resolve his monetary problems is obviously not a valid mitigating factor.  The fact that he has bring tarnish to the family reputation is again something that resulted from his own deed.  Likewise, the recovery of stolen property by the police would only reduce the total loss of the victims, but cannot be treated as a valid mitigating factor because it is not a voluntary restitution case. 

23.  D1 has pleaded guilty and is entitled to full one-third sentencing discount on the 3 charges.  He is therefore sentenced to 22 months’ imprisonment each for Charge 1 and Charge 2.  As for Charge 3, D1 is sentenced to 24 months’ imprisonment. 

24.  D1 committed the 3 offences within 2 days.  He preyed on the same office in these 3 offences in a relatively short period of time.  Having regard to the totality principle, the court considers that the total sentence of 25 months’ imprisonment is just and proportionate to D1’s overall culpability. 

25.  Accordingly, 1 month of the sentence in Charge 1 is to run consecutive to the sentence for Charge 3, the rest to run concurrently.  The sentences for Charges 2 and 3 are to run totally concurrent with each other.  D1 is therefore sentenced to a total of 25 months’ imprisonment in this case.