HKSAR v. MANDALAWALLI ACHARIGE CHAMIRA PRADIP RATHNASEKARA

DCCC1293/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1293 OF 2011

----------------------

-----------------------------

Reasons for Sentence

-----------------------------

1.  The defendant pleaded guilty to one count of non-domestic burglary and was convicted accordingly.

2.  The Amended Summary of Facts stated that at around 3:30 am on 10 October 2011, a party of police officers spotted the defendant walking inside a restaurant located at Shop A, Ground Floor, Wai Fung Street, Aberdeen.  The defendant was wearing a pair of white gloves when he walked pass the glass door of the restaurant.

3.  The police disclosed his identity and shouted through the glass door asking what the defendant was doing there.  The defendant replied ‘Staff’ and walked away.

4.  The police then laid ambush near the restaurant.  At around 5:15 am on the same day, the defendant was seen appearing at a wall outside the rear exit of the restaurant.  The defendant tried to climb over the wall, and fled after seeing the police.  The defendant was intercepted and arrested subsequently. 

5.  At a subsequent video recorded interview, the defendant admitted that he was inside the restaurant at the material time.  The manageress of the restaurant confirmed that the restaurant was closed at the time.  The rear door had been prized open and the cash register had been moved.  A pair of white gloves which did not belong to the restaurant was found near the kitchen.  A staff of the restaurant also discovered a windbreaker, a crowbar, a screwdriver, a gas burner and a white glove inside the fridge of the restaurant.  These items do not belong to the restaurant.

Mitigation

6.  The defendant was aged 29 and has two sisters. He was born in Sri Lanka.  For various reasons, the defendant deserted the military service in Sri Lanka and he came to Hong Kong in 2004.  The defendant relied on ISS assistance and received allowance on food, transportation and accommodation in Hong Kong.  Defence counsel submitted that there was no aggravating features in this burglary case.  Apart from the minor damage to the lock, the restaurant did not suffer any damages or loss.

7.  The defendant was not a professional burglar and this was not an organised crime.  And it can be regarded as a crime of desperation, not a crime of greed. 

Sentence

8.  The defendant came to Hong Kong in 2004 and soon afterwards, he was granted permission to stay in Hong Kong as a recognisance holder.  I was told that the defendant presented himself to be a torture claimant seeking for asylum in Hong Kong. 

9.  The defendant should regard himself fortunate to have such privilege in Hong Kong and to enjoy the various benefits or allowances provided by either the local authority or the UN authority. 

10.  The defendant had two minor convictions back in 2005.   The third one resulted in a binding-over order imposed in December 2010, and it is not taken as a conviction.  And he had been sent to jail for 3 months in September 2005 for the offence of attempting to mislead a police officer. In any event, I would disregard these convictions for the present sentence. 

11.  The most substantial mitigation for the defendant is his guilty plea for which he is entitled to have one-third discount.  In normal circumstances, the start point for non-domestic burglary is one of 2½ years’ imprisonment. 

12.  I have taken into account the fact that the restaurant did not suffer any loss and this was not a professional and organised burglary.  The Summary of Facts mentioned the discovery of certain equipment in the restaurant but I take it that there is no evidence to link these equipment to the defendant. 

13.  Taking all factors into account, I would take 2 years as the starting point and, with the plea, I reduce the sentence to 16 months.