HKSAR v. JOVIC MILOS

DCCC 1091/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1091 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges: burglary, possession of an identity card relating to another person, and, lastly, breach of condition of stay.

2.  For that last charge, breach of condition of stay, the defendant should have left Hong Kong on 7 August 2015. 

3.  However, on 2 September 2015, the defendant was seen at about 5 am by four police officers at the side entrance of Room 28, a restaurant on Peel Street, Central.  The defendant was seen carrying two large black plastic bags as well as three other bags.

4.  When the defendant saw the police, he dropped the two large plastic bags onto the ground and hastily retreated.  Obviously, the police suspected the defendant.  They split up and two officers followed the defendant whilst the other two quickly discovered that Room 28 had been burgled.  They informed their colleagues and the defendant was arrested.

5.  In the two bags that the defendant had left outside Room 28, the police found food, beverage and alcohol in both those bags.  In the three bags found on the defendant, the police found tools and those tools included cutters, pliers, screwdrivers, tape, torch, a drill and gloves.  These are all tools useful for breaking and entering into premises.

6.  The police also found an identity card belonging to a Jane Mercer.  In the bags there were some passports, bank passbooks, driving licences, and I do not have details of the individuals concerned with those documents.

7.  I have been told that Jane Mercer lost her identity card in June 2015.  There is no evidence the defendant stole this identity card and his explanation was that he picked it up near the ferry terminals in Central.

8.  There is CCTV footage and the CCTV footage of Room 28 show the defendant entering the restaurant at about 4 am, an hour before he is seen by police officers, and the footage shows him walking around the premises.

9.  Under caution, the defendant does not admit the offences charged and, clearly, from the statement of facts, gives convoluted and evasive answers under caution.

10.  The defendant’s best mitigation today is his plea of guilty.

11.  He is a man of clear record, but that is not surprising or carries much weight because the defendant is a tourist in Hong Kong, not a Hong Kong resident.

12.  I have been told the defendant is 28 years old, from Bosnia.  He is a graduate and is a psychologist.  I have also been told that he is married and has a 5-year-old child.  He and his wife have spent the last four years or so earning a living as musicians travelling around China and their young son has been travelling with them.

13.  In mitigation, I have also been told that for the last 2½ years, the defendant and his wife have become involved with heroin.  Ironically, it seems that the defendant, when he worked as a psychologist, worked with teens in Bosnia on an anti-drug addiction project. 

14.  He and his wife left China on their way home to Bosnia via Hong Kong.  Both have travelled so extensively that their passports were full and, in order to apply for a new passport, they had to do that from home.

15.  However, once in Hong Kong, perhaps realising the seriousness of their drug addiction, they registered at Yau Ma Tei Methadone Clinic and enrolled on a methadone programme.  This also led to them overstaying in Hong Kong.  As I have said, they should have left on 8 August. 

16.  I have been told that they overstayed not with intent or to deliberately flout the Immigration regulations and they demonstrated that by the fact they made a personal police report after they overstayed in Hong Kong.  It seems that they had rented a room from a Nigerian person who cheated them.  They were evicted by the real tenant or owner and reported this matter to the police.

17.  Mr McNamara has explained the events of that evening.  It seems that the defendant and his wife had had a daily dose of methadone.  He and his wife had had an argument and they had gone their separate ways.  The defendant drowned his sorrows in alcohol and some stage in the early hours of the morning committed the burglary (Charge 1).

18.  The defendant admits that he knew what he had done and intended to commit the offence but cannot explain his actions.  It was out of character.  All that can be said has been said on behalf of the defendant.

19.  I have also been informed that the defendant’s wife is serving an 18-month sentence and their 5-year-old child is living under the care of the Social Welfare Department in Po Leung Kuk, with a Care and Protection Order in place. 

20.  It is the 5-year-old who is the other victim in this scenario and he is a victim of his parents’ irresponsible behaviour, and drugs, sadly, I am sure, are to blame.  My sympathies lie with this child, but luckily the Hong Kong Social Welfare Department will take good care of him.

21.  It is widely accepted that the normal starting point for a burglary of a shop premise or a restaurant is one of 2½ years, unless there are mitigating or aggravating factors that exist. 

22.  I accept the mitigation put forward, albeit with some scepticism.  However, I do not see any mitigating factors or aggravating factors that will allow me to depart from the norm.

23.  Defendant, please stand up; please stand up.

24.  Therefore:

(1) for Charge 1, the burglary offence, I will take a starting point of 2 years and 6 months;

(2) for Charge 3, as I have said, there is no evidence the defendant stole this identity card or intended to use it in any way and therefore I take a starting point of 6 months’ imprisonment;

(3) for Charge 4, breach of condition of stay, the defendant has overstayed less than a month and I will take a starting point of 3 months’ imprisonment.

25.  The defendant has pleaded guilty.  He is entitled to a discount of one-third from all those starting points.

26.  After that discount is applied:

(1) for Charge 1, defendant is sentenced to 1 year and 8 months;

(2) for Charge 3, 4 months;

(3) for Charge 4, 2 months’ imprisonment.

27.  I have taken into account the totality principle, dates of the offences and the nature of the offences and mitigation put forward, and I order that all three sentences be served concurrently.

28.  Therefore, the total sentence is one of 1 year and 8 months.

COURT: Do you understand that sentence?

DEFENDANT: Yes.