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DCCC 45/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 45 OF 2017
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| Before: |
H.H. Judge G. Lam |
| Present: |
Mr. Jeffery Fenton, counsel on fiat, for HKSAR.
Mr. Michael Vidler of M/s Vidler & Co., assigned by the Director of Legal Aid, for the defendant.
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REASONS FOR SENTENCE
1. The defendant pleaded guilty to a charge of "Burglary". He burgled a restaurant and stole cash in the sum of $4,500 plus some other portable properties.
Summary of Facts
2. Mr. Setthawith (PW1) was a cook of a restaurant situated at Ground Floor, Sunny Building, Nos.57-59 Wyndham Street, Central ("the Restaurant"). He left work about 12:45 a.m. on 15 August 2016.
3. About 10:00 a.m. on the same day, PW1 returned to the Restaurant. He discovered a ventilation window on the folding door at the entrance having been damaged. There were signs of ransacking on the premises. A cash register which was originally placed near the bar was found on the kitchen floor; it was prized open and the cash ($3,500) inside went missing. A safe containing $1,000 cash and a laptop computer (valued at $2,000) was missing from the storeroom. Four bottles of wine were also missing. Some tableware (including 2 chopsticks, 1 wine opener, 1 knife and 1 fork) were damaged and bent.
4. Fingerprints were lifted from the scene and one lifted from a cash box was confirmed belonging to the defendant.
5. The defendant was arrested on 30 November 2016. In his video recorded interview, the defendant admitted that he kicked open the door of the Restaurant and entered the premises. He accepted that the fingerprint lifted from the cash box should be his. He might have prized open the cash register using the tableware. He took 4 bottles of wine and had consumed them. He had spent all the money taken from the cash register. He could not open the safe, so he threw it away.
6. Mr. Timms, Human Resources Manager of the Restaurant, confirmed that the defendant was never an employee of the Restaurant and that he was not authorized to enter the Restaurant at the time of the offence.
Mitigation & Sentence
7. The defendant is 33 and single. Prior to the present offence, he has 5 conviction records, which included 1 "Theft" offence, 1 "Burglary" offence and 2 "Robbery" offences. He is currently serving a 10-month sentence for a "Deception" offence (KCCC 4501/2016) with an expected release date in mid-July 2017. Defence solicitor Mr. Vidler informed me that the defendant committed the present "Burglary" offence before he committed the "Deception" offence in KCCC 4501/2016.
8. Regarding the defendant's background, Mr. Vidler informed me that the defendant and his family fled to Hong Kong from Pakistan in 2002 to avoid religious persecution. He and his family members were granted refugee status soon after arrival. The defendant has been waiting in Hong Kong for resettlement in another country for 15 years. During that time, he was unable to study or work. He was unable to leave Hong Kong either. As a result, he developed alcohol dependency. Meanwhile, his mother and siblings have resettled in the United States.
9. In mitigation, Mr. Vidler submitted that at the time of the offence, the defendant was drunk; his wallet and phone were stolen. On the spur of the moment, the defendant kicked open the door of the Restaurant to take some money to go home. Mr. Vidler further submitted that no one was alarmed and no planning was involved. The defendant did not even bring any tools with him. He also cooperated with the Police after being arrested.
10. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in another country. I understand that resettlement can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, refugees pending resettlement must behave themselves and obey the law. Feeling disappointed or frustrated is not an excuse for committing a crime.
11. The defendant has only himself to blame for becoming a person with a history of multiple convictions. As a refugee in Hong Kong, although he is unable to earn any income, his basic needs such as housing and food are provided for by the government and/or NGOs. In any event, being in financial difficulty (however serious) is no mitigating factor for committing a crime.
12. The defendant is a Form 8 holder. I have borne in mind the principles set out by the Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 on sentencing criminals with similar immigration status[1]. In my view, the present offence, by its nature as well as the circumstances of its commission, does have a serious detrimental effect on the community at large. Hence, the defendant's immigration status constitutes an aggravating feature.
13. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I would not increase the starting point based on the defendant's previous convictions. But I would increase the starting point to 33 months based on his immigration status. With the guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 22 months' imprisonment.
14. Notwithstanding the totality principle, I order the sentence in the present case to run consecutive to the existing sentence in KCCC 4501/2016.
[1] See paragraphs 23 to 27.
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