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DCCC 1171/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1171 OF 2016
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| Present: |
Ms Carol Fung, Counsel on fiat, for HKSAR
Mr Alex Leung Ka Lok, of Messrs Tang, Wong & Cheung assigned by the Director of Legal Aid, for the defendant
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| Offence: |
[1] [2] Burglary（入屋犯法罪） |
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty before me to 2 counts of burglary. Both premises in question are warehouses, which are situated on the same floor in an industrial building in Kwai Chung.
2. The defendant committed these burglaries at the two separate warehouses, Watsons and Parknshop, within two weeks of each other in October 2016.
3. The warehouses, monitored by CCTV, are accessible only by current staff from the main entrance, which are manned by security guards. The defendant used to work for the Parknshop warehouse as a casual worker until his dismissal in September 2016.
4. The first burglary occurred in the small hours (4 a.m.) of 10th of October 2016 at the Watsons warehouse. When the defendant and another man were each carrying a carton box of formula milk (valued at $1,260 per carton box) leaving the warehouse, they discarded the milk and fled upon hearing the shouts from a security guard. They made good their escape leaving behind their loot. All together 4 boxes of milk had been recovered at the scene. The CCTV, however, captured their crime.
5. Two weeks later on 25th October 2016, also in the small hours (4:30a.m.) of the night, this time the defendant, acting alone, was seen in a lift of the Parknshop warehouse on his way out carrying a box filled with beverage items (later found to be 42 bottles of drinks, a box of grapes and a box of tortoise jelly).
6. The security guard, who saw all this in the CCTV, went over to stop the defendant who was having a drink at the time. He told the guard that he was an ex-employee and had stolen the items out of greed.
7. Police came and arrested the defendant who, under caution, said that he stole the items for his own consumption as he was hungry and penniless. In a subsequent interview with the police, he admitted stealing only one box of milk in the first burglary and denied acting in cahoots with another.
8. The defendant, aged 36, has amassed 9 previous convictions over the past 23 years. 4 of them are dishonestly offences, and in fact his last conviction in 2015 is burglary for which he was sentenced to 16 months imprisonment.
9. On the previous occasion when the defendant appeared in this court and before plea was taken, his counsel asked the case be adjourned for reports to see if he was fit to plead. Now two psychiatrists’ reports are before me, both doctors concluded that the defendant is fit to plead. They are of the opinion that the defendant is a polysubstance abuser but his current condition requires no inpatient treatment.
10. Defence counsel takes the court through the defendant’s background briefly- the defendant is the only child in the family, both of his parents passed away sometime ago; he has no girlfriend and remains single up to now. He used to live in a public housing unit but had to move out in 2015 for being unable to pay the rent, and therefore he has become a homeless person ever since.
11. He once worked as a delivery worker at the warehouses in question and the more comfortable air-conditioning circumstances in the warehouses had enticed him to go back there to take a nap, counsel said, and because of feeling hungry after waking up, he stole those food items to eat.
12. Counsel stressed that this wasn’t a case of forcible break-in and asked the court to deal with the defendant in the most possible lenient way.
13. When asked by the court whether the defendant should be treated as acting in concert with another in the first burglary since two men were caught in the act on the CCTV, counsel replied that the defendant could only remember he committed the offence but had no recollection of being with another person. The court has indicated to the defence that it would be quite willing to hear further evidence to decide on the matter, but the defence declined to offer any.
14. There are sentencing guidelines for this type of offence; for non-domestic burglary in the absence of aggravating features, a term of 30 months is to be considered.
15. It’s not clear in the instant case how the defendant entered the warehouses in question but what is clear is that the entrance to the warehouses is not locked and is manned by security guards only. Despite the presence of security guards, the defendant seemed to be able to sneak in on two separate occasions without any difficulty, which might suggest that the security in question was too lax. Given the relative open settings of the warehouses, I am prepared to take a less-than-usual starting point for both offences.
16. The defendant tried to paint a picture that he committed the offences out of hunger as opposed to greed, but the items that he stole failed to support his claim. To satisfy his hunger, I would expect him to steal food which could fill him up straightaway; milk powder is certainly not that kind of food and drinks are not very filling either.
17. As far as the first burglary was concerned, I have no doubt in my mind on the evidence before the court that the defendant was acting in concert with another man.
18. For the first burglary, I take 21 months as starting point and in view of the presence of aggravating factor, i.e. acting in concert with another, I add three months on top which takes the starting point to 24 months. As for the second one, I take 21 months as the starting point.
19. As far as his mitigation is concerned, besides his guilty plea, there isn’t anything of substance that would justify a further reduction in sentence. For the first burglary, he is sentenced to 16 months; for the second one, 14 months.
20. Taking into account the totality principle, I order that 8 months of the second burglary should run consecutively to the sentence of the first burglary, the total term is one of 24 months.
21. There being no reason for further reduction, the defendant is therefore sentenced to a term of 24 months imprisonment.
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