HKSAR v. YUSUK PRAWIT

DCCC 69/2024

[2024] HKDC 1808

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of burglary committed on 19 September 2023 at a premises on the 8^th Floor at No 385 Reclamation Street in Mong Kok where various items were stolen.

2.  The facts show that the residence was occupied by the 1^st and 2^nd prosecution witnesses. This is a residential building and the flat was a domestic premises. There was a metal gate installed at the entrance to the building which had been left unlocked. In the early hours of 19 September 2023, the two victims, PW1 and PW2, checked all the windows and doors were closed and locked before going to bed. When they woke up in the morning they discovered signs of ransacking and also prise marks at the window in the living room. The rear door of the flat was left open. Various items were found missing, they can be seen in paragraph 5 of the Admitted Facts. They include items such as wallets, bank cards, cash, Home Visit Permit. Of significance is a pair of AirPods that were taken. It would appear that both the victims, PW1 and PW2, had items taken. They can be seen particularised in the particulars of offence.

3.  The defendant was located firstly by review of CCTV footage from a hotel located on the other side of the street and the CCTV showed the defendant leaving No 385 Reclamation Street carrying a bag belonging to the 2^nd prosecution witness, the victim. It seems also possible the location of the AirPods could be checked and that was done at 1800 hours on 20 September 2023 and it found that the AirPods were within the location near Fa Yuen Street. Further police investigation by way of patrol found the defendant wearing the AirPod in his left ear while walking in Fa Yuen Street. As a result of that he was arrested and the AirPods were recovered.

4.  Defendant made a cautioned statement in which he admitted the fence saying he climbed the stairs and reached the 8^th floor where the door was unlocked and entered the flat. He was aware of people present in the flat at the time when he entered it and so he took a bag which he placed inside one of the rooms then left the premises and went to Tsuen Wan.

5.  The admission made in terms of the facts is that the defendant stole two wallets, one bag, two bank cards, cash of $5,200 in Hong Kong currency, two Home Visit Permits, an Octopus card, a bus travel card for dependent, a Hong Kong Identity card, a watch and an AirPod with a case and ring.

6.  As far as the defendant’s background is concerned, the antecedent statement shows the defendant graduated from High School in Thailand, said to be unemployed at the time of arrest. It says that he has a mother but they did not live together, that was maybe true at that time but it is no longer.

7.  The defendant has a number of previous convictions, 16 in total, three for theft, one for handling stolen goods and a further offence of burglary where the date of sentence was 21 October 2020 and a sentence of 28 months was imposed.

8.  As far as further information that comes from mitigation shows the defendant is 37 years old, a Form 8 holder and a Thai National. He arrived in Hong Kong in 2013 from Thailand. The defendant’s father is in Thailand the defendant was in fact living with his mother and younger sister who are both Hong Kong Identity Card holders in a rented flat in Tsuen Wan. In mitigation, the defendant says he was addicted to the drug ‘Ice’ while in Hong Kong and has made various attempts to give up the drug. He also mentions that his younger sister became seriously ill in 2023 and he wished to look after his sister. She very unfortunately died in June of 2023 and he returned to his consumption of ‘Ice’ at that time and it would appear that in his mitigation the defendant is saying he was again addicted and desperate for cash to buy drugs leading to his commission of this offence. The defendant has been, it would appear from the information I have, the defendant has been remanded since his arrest so he presumably would not be subject to addiction at this point in time.

9.  The defendant has pleaded guilty to a domestic premises burglary. There are guideline sentences for that. The generally accepted starting point for burglary in the case of a domestic premises burglary by a person of clear record who pleads not guilty would be one of 3 years’ imprisonment, 36 months’ imprisonment. The court must then assess whether there are any extant aggravating factors and mitigating factors to alter that starting point. There is one possible aggravating factor in relation to the burglary itself lies in the case of whether a forced entry was made in this case. There is some evidence that supports that and some evidence that contradicts it. Firstly, prise marks were found at the window. However, it would appear the rear door of the flat was open and also the entry into the premises was open. I consider that in the light of the facts that I have, I cannot reach a definite conclusion as to a forced entry here.

10.  Other aggravating factors that exist in this case, firstly, the defendant’s Form 8 status which is a known and accepted aggravating status where an increase in sentence of not less than 6 months is normally imposed in respect of an offence in the District Court such as burglary. The second aggravating factor is the defendant’s previous convictions. The extent of an addition to the starting point for sentence in respect of this factor is at large to the court. However, the defendant does have a poor record and I believe in this case there should be some addition to the starting point to represent the fact the defendant has committed this offence in the past.

11.  I will take the initial starting point of 36 months’ imprisonment and I will add 6 months’ imprisonment for the defendant’s Form 8 status and a further 3 months to represent the failure of deterrence in his case by way of previous sentencing. That leads to a starting point of 45 months’ imprisonment. The defendant of course is entitled to a one-third discount from that for his plea of guilty leads to a sentence of 30 months’ imprisonment. That will be the sentence of the court.