HKSAR v. RODIL JOSEPH JOHN R

DCCC 555/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 555 OF 2016

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to Count 1 on the indictment of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. He pleaded not guilty to Count 2 on the indictment of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210 - the Prosecution offered no evidence on Count 2, and accordingly I dismissed Count 2.

Summary of Facts

2.   The burgled premises herein are premises at 5^th floor, Rear Block, No. 8 Gillies Avenue South, Hung Hom, Kowloon.  These premises are owned by the Richfield Group Holdings Ltd. and were unoccupied at the material time.  The defendant had no right or permission to enter the said premises nor to remove any property from the said premises.

3.  On 30 April, 2016 at around 4.15 p.m., Madam Wong Hau Kit was in her flat on the 4^th floor of the building where the burgled premises are located.  She heard noise sounding like breaking glass coming from the floor above. She looked out and saw a hole in the window of the burgled premises and a hand appearing to remove some fragments of glass from the hole in the window.  She contacted the police.

4.  Police officers attended the scene. PC 10425 saw the defendant opening a door of the burgled premises as if to come out of the said premises. When he saw the police officer, the defendant tried to close the door, with himself inside the premises.  However, the police officer was able to prevent this and the defendant rushed out of the premises - he was apprehended and eventually arrested.

5.  PC 10425 checked the premises and observed that a window of the said premises was smashed and there was a hole in it. There was a set of pipe cutters about 20 cm long outside the main entrance of the premises.  Broken glass was found inside the premises.  The rear door of the premises was open. A water tap in the kitchen area had been dismantled. There was a pair of pliers lying near the basin.

6.  The defendant told PC 10425 that he did not live at the premises and that he had been brought to the premises by two ‘foreign’ persons.

7.  Fingerprints were lifted from inside the premises and it was found that one matched the right palm print of the defendant.

8.  By his plea, the defendant has admitted that he entered the said premises as a trespasser and attempted to steal therein. I was satisfied beyond all reasonable doubt that the facts supported the charge and accordingly, I convicted the defendant on the charge of burglary that he had admitted.         

9.  A photo album of 16 photographs was produced by agreement and viewed by the Court. These show the premises in question. Photo 5 depicts the main gate and front door of the premises while photo 4 is a view of the inside of the premises taken from the front door.  Photo 6 depicts the smashed window taken from inside the premises, while photo 2 depicts the same window taken from the outside. Photos 7 to 11 depict the inside of the said premises, while photos 12 and 13 depict the rear gate of the premises.  Photo 14 depicts the flat on the 4^th floor of the said building. Photo 16 is a view of the entrance to the building taken at the Ground floor.

Previous Convictions

10.  The defendant’s criminal record dates back to 1993. He has 7 previous convictions in 6 court appearances, including 3 for theft and 1 for burglary.  His most recent conviction was for an offence of criminal intimidation on 30/5/2014 when he was sentenced to 4 weeks’ imprisonment. 

Mitigation

11.   The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents.  This disclosed that the Defendant was born in the Philippines.  Although his age was recorded as 41 years, Mr. Tang said this was incorrect – the defendant is aged 43 years. The Prosecution accepted this – it must be as his date of birth on the Antecedent Statement as well as on his criminal record is 16/1/1973. Mr. Raffell also informed me that the defendant is a permanent Hong Kong identity card holder.  The Antecedent Statement further disclosed that the defendant had graduated from lower secondary school in the Philippines. He lived with his mother who is aged 73 years in Hong Kong and the defendant is in good health.  Although it was recorded on the Antecedent Statement that he was unemployed, Mr. Tang informed me that in fact the defendant had been employed as a cleaner/dishwasher at a restaurant until his arrest and he was earning HK$13,000 a month. 

12.  Mr. Tang submitted that the defendant was divorced. He had 5 children. The 3 older ones lived in the Philippines, whilst the 2 younger ones, a son aged 11 and a daughter aged 5 lived with his ex-wife here in Hong Kong.   He gave his ex-wife money for the children – a few hundred dollars each week – approximately $500-600.

13.  Counsel submitted that the Defendant was remorseful, as reflected by his plea.  The incident occurred after he had had a quarrel with his girlfriend - he was in a bad mood and had consumed a bottle of Chinese white wine and 4 bottles of beer.  Mr. Tang said that although the defendant said he was drunk, he knew what he was doing and there was dishonesty.  The defendant had quarreled with his girlfriend in a nearby flat, and after he left the flat, he walked in the direction of the building where the burgled premises are.  He did not bring along any equipment, there was no premeditation, and no aggravating factors - the premises were unoccupied and the offence was in the afternoon, and there were no valuables in the flat, as depicted by the photos.  The damage was to the window.  Counsel submitted that the Court could depart from the guideline for burglary of domestic premises.

Sentencing Considerations

14.   There is a well settled sentencing guideline for burglary of domestic premises. According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

15.   In the present case, I find there were no aggravating features in the commission of the offence in that no property was stolen and the Defendant committed the offence alone.The premises were vacant at the material time and there was little possibility of confrontation with any occupier. There was damage caused to the premises - there was a smashed window.

16.  I take the view that the imposition of the normal starting point of 3 years’ imprisonment for this kind of burglary would be somewhat harsh on the Defendant.  However, I do bear in mind that the offence here is one of ‘burglary’ and an immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.   The tariff is not a ‘straightjacket’ and can be departed from in certain circumstances.

17.  I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant. After considering the facts of the case, the mitigation and the photo album of the outside and inside of the premises, I am satisfied that a lower starting point would be appropriate.  I would take as a starting point 2 years and 6 months’ imprisonment, discount this by one-third to reflect the Defendant’s plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 1 year and 8 months’ imprisonment.