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DCCC 363/2018
[2018] HKDC 1183
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 363 OF 2018
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| Present: |
Mr Francis M B Cheng, Counsel on fiat, for HKSAR |
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Mr Moosdeen Azmat Mui, of A M Mui & Kwan, assigned by
the Director of Legal Aid, for the defendant |
| Offence: |
[1] & [2] Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. The defendant was convicted on his own plea and agreement to summary of facts to two charges of burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.
Agreed facts
Charge 1
2. According to the summary of facts, PW1, the tenant of Room C, 4th Floor, No 8D Mong Kok Road, Mong Kok, Kowloon, Hong Kong left his premises secured by locked door to the premises and metal gate to the 4th Floor at around 9:30 pm on the 29 December 2017.
3. When PW1 returned home at around 12:20 am on the 30 December 2017, he discovered that the lock on the door of Room C was damaged and the door was left ajar. He then discovered that Room C have been ransacked and two HTC smartphones, one iPhone, one black “Bodysac” backpack containing a key to the Room C, one electric screwdriver, some screwdrivers, some pliers and two other backpacks had been stolen.
4. PW1 have previously switched on the security function on one of his stolen mobile phones which would capture a photo if someone tries to unlock the passcode unsuccessfully. At around 9:37 am on 31 December 2017, via the security function, PW1 received a photo of a male who tried to unlock the mobile phone. This male was later identified by the police to be the defendant.
5. A fingerprint was lifted from a paper box inside Room C which was subsequently found to match defendant's right middle finger.
Charge 2
6. PW2 lives at Room no 3, 3rd floor, No 164 Apliu Street, Sham Shui Po, Kowloon, Hong Kong, which is a subdivided flat with a wooden door.
7. At around 9 pm on 31 December 2017, PW2 locked the door of Room 3 and closed the door of third floor before leaving. When she returned at around 8 am on 1 January 2018, she discovered that the door of the third floor was left open while the room door of Room 3 was left ajar. Room 3 was found to be ransacked and cash of $12,000, one smart phone, one bank card and one Home Visit Permit were found missing.
8. Two fingerprints lifted from a plastic box inside Room 3 was subsequently found to match the defendant's left middle and ring fingers. The fingerprint lifted from a paper box inside the room was also found to match the defendant's right middle finger.
9. Total value of the stolen items for two charges are $28,650.
Arrest and Caution
10. On 4 January 2018, police arrested defendant at his residence in Mong Kok, Fa Yuen Street.
11. The black “Bodysac” backpack stolen from PW1's residence was found on the floor in his room. The backpack also contained the key to PW1's residence.
12. On 4 January 2018, the video-recorded interview in relation to Charge 1 was conducted, the defendant in the presence of a Thai interpreter admitted that he had seen the black backpack seized from his home and that he tried to unlock a black HTC mobile phone.
13. In the cautioned interview in relation to Charge 2 conducted on 21 February 2018, in the presence of a Thai interpreter, the defendant admitted that he had gone to the Room 3 before.
14. At all material times, the defendant entered Room C and Room 3 as a trespasser and had stolen therein.
Criminal records
15. The defendant had two previous criminal records, none similar.
Mitigation
16. The defendant is aged 32. He is a visitor to Hong Kong from Thailand in 2015, but became a Form 8 holder since mid-2016.
17. He came from a (indistinct) family, he is single and resides with his parents both retired and sick.
18. He had previously worked in convenience store as a salesman earning about HK$24,000 per year. He supports his family financially.
19. He said he was approached by an employment agency to work in Hong Kong but he had to pay HK$80,000 as handling fee, he was told that the same could be offset from his work pay in Hong Kong. He therefore came to Hong Kong and was arranged to live at the premises where he was arrested waiting for assignment of jobs. The defendant said he was pressurized by the employment agency people to pay them the $80,000 with threats of violence. He therefore committed the present offense in order to earn some money.
20. It is said on his behalf that he is deeply remorseful for what he has done, he has further said that all the goods burgled were paid to those people demanding the handling fee from him and he also wrote a letter to this court asking for leniency.
21. In this case, the premises burgled are domestic premises.
22. That being the case, this court considers it appropriate that sentencing starting point for a domestic premises for burglary be adopted.
23. The Court of Appeal having previously laid down sentencing starting point for domestic premises burglary charges at 3 years for first offender of full age.
24. In this case, defendant was a Form 8 holder at the time of the commission of the two offenses. This is an aggravating factor and the sentencing starting point should be enhanced.
25. The Court of Appeal observed in HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206 that the commission of an offence by a foreign national who was the holder of a Form 8 recognizance could constitute an aggravating factor and could have a sentence enhanced. It is because that a foreign defendant when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government and his crime has affected Hong Kong's reputation for order and security and gone to the very essence of Hong Kong's integrity in the international community.
26. I have considered the circumstances in this case including the nature of the offences and will enhance the sentencing starting point by 3 months, bringing it to 3 years and 3 months.
27. I have also considered all the mitigation advanced by defence counsel. The defendant has pleaded guilty at the first available opportunity. This is, in my view, the only and most valid mitigating factor in this case, of which the defendant is entitled to one-third sentencing discount.
28. Accordingly, for Charge 1, defendant is sentenced for 2 years and 2 months' imprisonment.
29. For Charge 2, defendant is also sentenced to 2 years and 2 months' imprisonment.
30. Offences in the two charges are separate and distinct. They are committed two days apart, involving different locations and different victims.
31. Commission of the 2nd charge offense obviously add to the culpability of the defendant.
32. The sentence in the two charges therefore should be consecutive to each other.
33. This court then considers the totality principle and consider that 3 years and 4 months' imprisonment to be a just and a proportionate sentence, having regard to the overall culpability of the defendant, especially to the offences of which he was convicted.
34. It is ordered, therefore, that the 12 months' imprisonment sentence in the 2nd charge is to run concurrent to the sentence in the 1st charge and the other 1 year and 2 months' imprisonment sentence of the 2nd charge is to run consecutive to the sentence in the 1st charge, making a total sentence of 3 years and 4 months.
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