HKSAR v. MOREIRA ABHAY CHARAN DAS BATISTA

DCCC 122/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 122 OF 2017

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REASONS FOR SENTENCE

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Charges

1.  D2 pleads guilty to Charge 2 and Charge 3.  Both are burglary charges. Both burglaries happened on the same day at two neighbouring units on the same floor of an industrial building.

Facts

Charge 2

2.  Mr Ma operated an eyeglass shop at Room C10 on the 9th floor of How Ming Factory Building, 99 How Ming Street, Kwun Tong.

3.  On 6 November 2016, just before midnight, Mr Ma locked the glass door of his shop and left.  The next day, at around 1 pm he came back only to find that the glass door had been prised open.  The shop had been ransacked.

4.  The following properties were stolen from the shop:-

(a) 49 pairs of eyeglasses, valued at $49,000;

(b) 66 pairs of sunglasses, valued at $66,000;

(c) three display boxes of black colour, valued at $200-odd;

(d) one display box of silver colour, valued at around $100;

(e) 46 eyeglasses boxes;

(f) one notebook computer, valued at $4,000.

Charge 3

5.  Madam Leung rented Room C8 of the same floor for storage.  On 7 November 2016 she found one bicycle worth $5,000 missing, together with three carton boxes of household items.  She told police that when she left the premises earlier she had closed the door but she was not sure whether she had locked the door.

6.  A crowbar was found outside Room C8.

7.  CCTV of that floor revealed that defendant and two persons (Wanted Person 1 and Wanted Person 2) wandered at the 9th floor in the small hours of 7 November 2016.  Defendant was carrying a crowbar then.  CCTV also captured the three carrying baggages from the 9th floor to the ground floor between 0250 hours and 0330 hours that day.  Later, the three got on a van.  It is found out that it was a hired van which carried defendant and his accomplices to Graham Street, Central.  There, defendant and the others unloaded the goods from the van.

8.  On 16 November 2016 police raided a premises in Graham Street and found the following items:-

(a) 49 pairs of eyeglasses;

(b) 66 pairs of sunglasses;

(c) three black boxes;

(d) one silver box;

(e) 46 eyeglasses boxes;

(f) one bicycle.

All these properties were stolen from either C10 or C8, as mentioned earlier.

9.  D2 was arrested on 29 November 2016.

10.  It transpire that D2 had a friend staying at Room D1 of the same 9th floor, where D2 committed Charge 2 and Charge 3 in the small hours on 7 November 2016.

Record

11.  Defendant is now aged 27.  He was born in Brazil.  He came to Hong Kong in 2009. But he is not a permanent citizen here yet.  Between 2015 and 2017, defendant had got himself three convictions, but those convictions were not related to dishonest offences.

Mitigation

12.  Counsel says defendant came from a good and extended family.  However, defendant did not achieve as highly as the other members and more unfortunately, he later fell into bad company and taking drugs.

13.  Counsel says defendant had worked as a model and an English teacher.  He has been taking a Bachelor linguistic course in the Open University.  He aspires to complete that course and become a teacher by profession.  Counsel says defendant is now remorseful.  He is determined to finish his degree course while in prison.  He is determined to bring his life back to track.

14.  Counsel says in that early morning on 7 November 2016 defendant was helping his friend Irina to move out.  That girl was living in Room D1 of the 9th floor of the said industrial building.  He said  defendant first came across the C8 premises in Charge 3.  He found its door open.  He then went in and committed Charge 3.  Counsel said that breach of law was purely opportunistic.

15.  After that, defendant saw those sunglasses and eyeglasses displayed in the neighbouring unit, ie Room C10 of the same floor.  That aroused his greed. He went back to Irina’s place at Room D1 and fetched a crowbar to prise open the locked door of Room C10.  He then entered the premises and stole from it, thereby committing Charge 2.

16.  Counsel says most stolen properties were recovered.  He asks the court to be lenient towards defendant and, if possible, impose concurrent sentence for both charges.

17.  Counsel says defendant was co-operative with the police after arrest. Actually, he has given a non-prejudicial statement to the police, disclosing the identity of Wanted Person 1 and Wanted Person 2.  Prosecutor confirms that the information given by defendant has the potential to enable police to make progress in their investigation, though so far no arrest has been made of those two Wanted Persons.

Sentence

18.  The two burglaries took place at two neighbouring units situate at the same floor of a non-domestic building.

19.  I accept that the premises in Charge 3 had its door unlocked.  Somehow it was even open when defendant came upon it.  Defendant was tempted to go inside and stole a bicycle worth $5,000 and three boxes of household items from these premises.  The bicycle was recovered but not the three boxes of household items.  The value of the lost household items was unknown.

20.  I can treat the commission of Charge 3 as an opportunistic crime and thus adopt a lower starting point in such circumstance.  For this charge, I adopt a starting point of only 18 months’ imprisonment.  Defendant pleads guilty at the earliest opportunity.  He is entitled to one-third discount.  I thus sentence defendant to 12 months’ imprisonment on Charge 3.

21.  Charge 3 might be regarded as an opportunistic crime, but Charge 2 was certainly not.  Defendant went to fetch a crowbar to prise open the locked door of Room C10 in Charge 2.  Then, he and his accomplices stole valuable properties from the shop.  The stolen properties were worth near $120,000. Fortunately, most properties were recovered.  Only the computer worth $4,000 was not found.

22.  For this Charge 2, I have to adopt the usual 30 months’ imprisonment as the starting point.  Defendant is entitled to one-third discount for his early plea.  I thus sentence defendant to 20 months’ imprisonment on this charge.

23.  The two burglaries, though close in time and in space, were separate and distinct offences.  The two sentences cannot be completely concurrent. Originally, I should order 3 months’ imprisonment of Charge 3 to serve consecutively to Charge 2. But for the special mitigation raised by defence counsel (see paragraph 17), I now only order 1 month’s imprisonment of Charge 3 to run consecutively to the 20 months’ sentence of Charge 2.  Thus, defendant has to go to prison for a total of 21 months for both burglary offences.