HKSAR v. KHAN JHINED

DCCC 122/2020

[2020] HKDC 561

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2020

____________

____________

REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Burglary". He and 4 other persons burgled a mobile phone shop and stole 21 second-hand mobile phones.

Summary of Facts

2.  The premises particularized in the Charge ("DMC") are situated at Sheung Tak Plaza, Tseung Kwan O ("the Plaza").  DMC is a mobile phone retail shop.

3.  About 9:00 p.m. on 5 December 2019, a staff member of DMC (PW1 Mr. Kwok) closed up for the day.  About 4:50 a.m. on 6 December 2019, a security guard (PW2 Mr. Lui) found the glass window of DMC having been smashed and its display shelf empty.  PW2 informed PW1, who then alerted the Police.  PW1 returned to DMC and found 21 second-hand mobile phones (valued at $46,100 in total) missing from the display shelf.  The costs of repairing the smashed window was $2,000.

4.  CCTV footage revealed that about 2:28 a.m. on 6 December 2019, the defendant and 4 other persons (WP1 to WP4) entered the Plaza via its rear staircase and went up to the 1^st Floor.  About 2 minutes later, the defendant was acting as a lookout whilst WP1 smashed the glass window of DMC with a hammer. At least 3 WPs quickly snatched the mobile phones from the display shelf.  All 5 culprits then fled via the rear staircase.

5.  CCTV footage of various locations in the vicinity of the Plaza revealed that the defendant and WP1 to WP4 left the 8^th Floor of Ming Wik House, Kin Ming Estate together before the burglary.  After the crime, the defendant, WP1 and WP2 returned to the 8^th Floor of Ming Wik House.

6.  Police investigation subsequently confirmed the defendant's identity.  About 7:05 a.m. on 18 December 2019, the defendant was arrested at his home situated at the 19^th Floor of Ming Wik House.  Under caution, he said in Punti "I was only a lookout.  I did not know anything else."  The clothes and footwear worn by the defendant at the time of the offence were found and seized from his home.

7.  In his video recorded interview, the defendant admitted that he was recruited by WP1 to be a lookout in a "job".  In the evening of the incident, he met up with WP1 and other culprits at Choi Ming Court.  They walked to the Plaza and WP1 brought a hammer with him.  The defendant claimed that he and one culprit did not do anything whilst the other 3 snatched the phones and put them in their pockets and bags.  The defendant said he did not know the whereabouts of the stolen phones.  He identified himself, WP1 and WP2 in the CCTV footage.

Mitigation & Sentence

8. The defendant is 21 and has a clear record. He was born and educated in Hong Kong up to Form 5 level. He resides at a public housing unit in Tseung Kwan O with his parents and 3 siblings. He was a part-time delivery worker prior to his arrest.

9. In mitigation, defence counsel Mr. So submitted that the defendant was 20 at the time of the offence. He cooperated with the Police throughout. He gave 2 non-prejudicial statements to the Police, but no one was arrested. Mr. So stressed that the defendant was merely acting as a lookout. He did not steal anything from the shop and received no reward from WP1.

10. For the purpose of sentencing, it matters not what role the defendant played in the commission of the burglary. As revealed in the Summary of Facts (dated 3 July 2020), what each culprit did is clear. They might have played different roles, but they each contributed to execution of the crime and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.

11. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I accept that the value of the properties stolen may not be significant, but the crime was committed by 5 persons acting in concert, which is clearly an aggravating feature. Furthermore, some advance planning must have been involved because WP1 saw the need to bring along a hammer for glass-breaking purpose. The group also seemed to know how to enter the Plaza smoothly during after-hours. I consider a starting point of 33 months' imprisonment to be appropriate and just for the present charge.

12. The defendant entered his guilty plea in a timely fashion, the sentence is therefore reduced to 22 months. Although his non-prejudicial statements did not result in any other culprits being arrested, the defendant's willingness to assist the law enforcement should be encouraged and recognized. I will grant him a further discount of 1 month, reducing his sentence to 21 months. Apart from the above, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 21 months' imprisonment.