HKSAR v. PINTO

DCCC 131/2023

[2023] HKDC 1826

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 131 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant was convicted upon his own guilty plea of the charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap.210.

FACTS

2.  At the material time, Ms Chan (“PW1”)  was living in a hut on the rooftop of Ng Po House, Nos. 103-109 Sai Yeung Choi Street South, Kowloon. The main gate of Ng Po House was always left open, but CCTV surveillance system was installed. A security guard was posted at the main entrance between 8 am and 5 pm daily. For renovation purpose, scaffolding was erected around the entire building. There were seven units on each floor from the 1^st to the 9^th floor. PW1’s hut was at the rooftop on the 10^th floor. The staircase leading to the rooftop was secured by a metal gate (the “Metal Gate”). Only PW1 had access to the rooftop through the Metal Gate. She also installed a motion detection CCTV on the rooftop.

3.  On 17 November 2022, when PW1 returned home after work she locked the Metal Gate. She also locked the door of her hut. At about 3:31 am on 18 November 2022, PW1 was notified through her mobile phone that her CCTV system detected motion at the rooftop area. Through the CCTV, PW1 saw the defendant was touching various items at the rooftop. PW1 then went to look at the rooftop area through the glass door of her hut. The defendant became aware of PW1 and fled. PW1 made a report to the police.

4.  At 3:54 am, police officers arrived and found the defendant being on top of a water tank of Ng Po House. PW1 identified the defendant as the trespasser she saw earlier. No prize mark was found at the Metal Gate or the door of her hut. The defendant was arrested. He was found in possession of a labour glove, a sling bag and HK$10. Police also found a bottle of water and a cigarette butt at the scene.

5.  In a subsequent cautioned video-recorded interview, the defendant said, inter alia, the following:

(i)  It was the first time he went to the rooftop;

(ii)  He took the stairs all the way to the 9^th floor;

(iii)  Since the Metal Gate was locked, he crawled past an unlocked wooden door and climbed up the scaffolding to the rooftop;

(iv)  The labour glove found in his possession was taken by him at the rooftop; and

(v)  He had tried to leave the rooftop as quietly as possible in order not to alert any people around.

6.  Ng Po House’s CCTV captured the defendant entering the main gate of Ng Po House at 03:09:17 hours on 18 November 2022. He then appeared at the lobby on the 1^st floor of Ng Po House at 03:09:34 hours.

7.  PW1’s CCTV captured the defendant walking around at the rooftop from 03:31:53 hours to 03:52:21 hours.

DEFENDANT’S BACKGROUND & PREVIOUS RECORD

8.  The defendant was born in Bangladesh in November 1987 and is now 36 years old. He received education up to secondary school level in Bangladesh. He is divorced and has a son of 12 years old living in Bangladesh. He is a Form 8 recognizance holder and has been relying on international social service since he came to Hong Kong in 2015.

9.  He was previously convicted of one charge of “dealing with goods to which Dutiable Commodities Ordinance applies” and one charge of “taking employment/establishing/joining in any business while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”. For those two convictions, he received a total sentence of 13 months and 2 weeks’ imprisonment: KCCC 1105/2018.  He was released on 15 February 2019.

10.  Mr McCoy referred me to the following sentencing authorities:

•  R v Wong Man [1993] 1 HKC 80

•  HKSAR v Cheng Wai Kai CACC 338 & 339/2007

•  HKSAR v Law Tin Yam CACC 258/2010

•  HKSAR v Singh Gursevak [2019] 2 HKLRD 274

•  HKSAR v Shah Syed Arif [2016] 4 HKLRD 667

11.  Mr McCoy submitted that:

•  the defendant did not go to the building with a fixed intent to steal;

•  the defendant went to the building as he thought it was where his friend’s apartment was;

•  having realized that he was mistaken and feeling tired, he decided he would take a rest on a water tank on the rooftop;

•  the labour glove was the sole item which was taken and was of low monetary value;

•  the taking of that labour glove was not in preparation or assistance to commit further crime but rather an aid to reach his desired location;

•  the defendant did not bring any tools to assist in gaining access to the building or to assist in committing any crime;

•  he did not make attempts to ransack the premises; and

•  he did not force way into the premises or cause property damage.

12.  Mr McCoy submitted that none of the aggravating factors stated in Cheng Wai Kai existed in the present case, but said that there could be a minor enhancement on the ground that the defendant was a Form 8 recognizance holder.

SENTENCE

13.  Regarding the submission that the defendant went to the building as he thought it was where his friend’s apartment was, Mr McCoy informed me this morning that the defendant would not testify on that matter by Newton Inquiry. On that basis, I am not prepared to accept the proposition that the defendant went to the building at about 3:09 am thinking that it was where his friend lived.

14.  This morning, I asked the prosecution whether the rooftop was considered a common part of Ng Po House or PW1’s premises to the exclusion of others. The prosecution showed me land search record from the Land Registry showing that PW1 and one Mr Wong were the owners of the penthouse and rooftop of Ng Po House. As such and since the labour glove was stolen from the rooftop, I will impose sentence on the basis that it was a domestic premises burglary which attracts a usual starting point of 3 years’ imprisonment.    

15.  As the defendant committed the present offence while he was a Form 8 recognizance holder, I will enhance the sentence to 39 months’ imprisonment.

16.  The defendant first appeared at the District Court for plea on 2 March 2023. The case was adjourned for a number of times for legal advice and/or plea bargain on 18 April, 15 June, 10 August and 5 October 2023. It was only at the last hearing on 5 October 2023 that the defendant indicated he would plead guilty to the charge. Nonetheless, the defendant pleaded guilty before this case was listed for trial. As such, I will give him one-third discount. There being no further valid mitigating factor justifying further reduction in sentence, the defendant is sentenced to 26 months’ imprisonment.