HKSAR v. NESOVIC RIANA

DCCC 959/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 959 OF 2015

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Reasons for Sentence

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1.  The defendant faces two charges of burglary. She pleads guilty to Charge 1. Upon the application of the prosecution, Charge 2 is left on file and not to be proceeded with without the leave of court.

2.  The premises she burgled in Charge 1 was a bar situated at 3rd floor of a commercial building at Central.  It was closed after mid-night on 14 September 2015.  At around 10.30 pm, a staff of the pub returned to the bar and found the back-door of the bar was opened with signs of ransacking inside the premises.  Inside the kitchen, the staff found a rucksack which did not belong to any staff members there.  It contained some petty cash and personal items.  Upon checking the premises, it was found that six items with total value of around $59,500 were missing, namely, one iPhone, one headphone, one hard disk driver, two notebook computers and one camera. 

3.  CCTV at the ground-floor lift lobby of the building captured the defendant walking into the building at around 11.45 am on 14 September 2015 with one rucksack and one recycle bag.  She took the staircase from the lift lobby up the building.  The defendant came back down by the staircase and left in a rush at 12 pm on the same day with two other rucksacks and the recycle bag.

4.  The defendant was arrested on 27 September 2015.  Under caution, she admitted that the rucksack seized at the bar was hers.  However, she said her bag was stolen and she denied the offence.

5.  The defendant is a 50-year-old Bosnian.  She has previous convictions for theft and breach of condition of stay.  As Miss Liang, counsel for the defendant, told the court that the defendant’s husband is also remanded in gaol and that their 5‑year-old son is in the custody of Social Welfare Department, I called for a background report of the defendant to know more about her background and the welfare arrangement of her son. 

6.  The background report prepared by a probation officer,  Miss Leung, reveals that the defendant, her husband and their son only came to Hong Kong in July 2015.  The couple first went to work in the mainland in 2012.  They got addicted to dangerous drugs in the mainland. Hoping to stay away from their drugs peers, they came to Hong Kong. However, they could not manage to quit the vice habit.  The son is now the subject of a 12‑month care and protection order under the care of Po Leung Kuk.  Arrangements have been made for the family to meet once each month.

7.  In the mitigation today, Miss Liang makes clarification that what the defendant meant by “unconscious mind”, the phrase used by the probation officer in the background report, when the offence was committed, was that she had taken drugs before and she was under the influence of drugs when the offence was committed.  Miss Liang confirms that there is no dispute that the defendant realised she was a trespasser and she was stealing.  I am satisfied that the guilty plea was proper.

8.  In mitigation, Miss Liang, citing the case of HKSAR v Hong Chang Chi CACC 187 of 2001, asks the court to give credit to the defendant’s serving imprisonment term as a foreign national.  A mitigation letter written by the defendant is submitted to the court in which the defendant set out her background, pleading mercy with remorse.

9.  Burglary is a serious offence.  The usual starting point for burglary of non-domestic premises is 2½ years’ imprisonment.  I accept that the defendant had taken drugs and committed the offence while under influence of the drugs.  However, I do not think that the existence of such influence when the defendant voluntarily took the drugs and realised that she was stealing warrants any reduction of sentence.

10.  It is sometimes said that a foreigner serving a sentence in prison in Hong Kong may encounter more difficulties than the locals.  However, in the case cited by Miss Liang, Stuart-Moore VP of the Court of Appeal observed in the judgment at paragraph 14 that:

“While the overseas status of a defendant was a circumstance to be taken into consideration, it could not amount to mitigation to any substantial degree and should not, on that account, be given a specific discount.”

11.  He concluded at paragraph 16 of the judgment that:

“We consider that the decision to give a specific discount for the ‘foreigner’ element in Rohrer was contrary to well-established practice and, as such, was given per incuriam.”

12.  A plea of guilty is a strong mitigating factor in this case.  However, only a timely plea is entitled to a one-third discount of the sentence.  This case was set down for trial for three days.  The defendant pleaded not guilty to the charges on the first day of trial when the prosecution was ready to proceed with the case and all the witnesses were in court.  The case was adjourned on the application of the defence for the defendant to view the CCTV footage to be produced as exhibit by the prosecution.  It was on the second day that the defendant entered her plea of guilty to Charge 1.  Caught by surprise, as Miss Liang told the court, she had to apply to adjourn the case for her to take instructions for mitigation. The case was therefore adjourned to the third day for this purpose.

13.  I have alerted Miss Liang of the recent decision of the Court of Appeal in HKSAR v Lo Kam Fai CACC 374 of 2014.  In that case, the Court of Appeal says the policy that a defendant will get the full one-third discount as long as he pleads guilty at any time before the trial starts may have to be adjusted in order to prevent the policy being abused.

14.  In the present case, having considered the explanation offered by Miss Liang that the CCTV footage could not be viewed by the facilities offered by the Correctional Services Department (as the defendant was remanded in gaol custody) and the fact that the trial has only technically started with no evidence having been adduced by the prosecution, I exercise my discretion to give the defendant the full one-third discount for her plea of guilty. 

15.  I have sympathy for the son of the defendant. Doing the best I can for the son, I give the defendant 2 months’ reduction of sentence so that the defendant could be released earlier to bring her son back to their country.

16.  The defendant is therefore sentenced to 18 months’ imprisonment.