HKSAR v. LIN JIANBIN

DCCC 611/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 611 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of burglary[1]. Particulars are that he on 13^th April 2017, having entered as a trespasser the staff room of McDonald’s Restaurant on the 2^nd floor of Kwong Fat Building in Tsuen Wan, stole two Octopus cards and cash of $400.

Summary of facts

2.  Properties belonging to 4 staff members of the McDonald’s Restaurant were found to be missing from the staff room at around 10pm on the charge date. The cash and Octopus cards that were stolen were taken from the wallets of the respective owners.

3.  Although the corridor leading to the staff room was secured by a combination lock, access to the room was still possible from the rear entrance, which was usually left unsecured.

4.  The defendant was located and arrested for the offence. The summary of facts does not disclose how and why.

5.  Under caution, the defendant said he entered the staff room via the rear entrance at around 9pm. He stole the money and two Octopus cards and used them to buy cigarettes from a nearby 7-eleven store. He had thrown away the Octopus cards.

Previous convictions

6.  The defendant has 6 previous convictions. 3 of them were for theft in October 2015, July and September 2016. He was in breach of the suspended sentence that was imposed for the 2^nd theft. The remaining convictions are all minor drug related offences. The defendant was last sentenced to the DATC on 1^st September 2017.

7.  The defendant was last released from prison on 12^th January 2017. That period of imprisonment was related to the second and third theft convictions. He committed the present offence 3 months later. I find that the defendant is a persistent offender and his sentence should be enhanced on this basis.

Mitigation

8.  The defendant is 34 years old and he came to Hong Kong from mainland China in 2012. His 8 year old son lives with his ex-wife in China.

9.  Ms Chan for the defendant told the court that the defendant was walking by and saw that the rear entrance of the restaurant was unsecured. He then decided to go inside to see if there was anything to steal. Ms Chan submits that the defendant had committed an opportunistic crime and asks the court to grant him at least a 3-month discount.

10.  Ms Chan also pointed out that there are no aggravating features in this case and that the value of the properties stolen was low.

Sentence

11.  It is trite law that burglary of a non-domestic premises by a first time offender of full age, without any aggravating or mitigating features would attract a starting point of 2 and a half years’ imprisonment[2].

Opportunistic crime

12.  It was put forward in mitigation that this was an opportunistic crime. The defendant was walking by, saw the unlocked rear entrance, and decided to enter and steal.

13.  There is nothing in the summary of facts to suggest that this could not have been the case.

14.  In the case of HKSAR v So Chi Man, CACC 306/2004, the Court of Appeal had to consider a sentencing judge’s approach to facts put forward in mitigation. They referred to the following passage in Archbold UK:

“14. The issue raised by Mr Choy is one that relates to circumstances which not infrequently arise. In Archbold 2005 at paragraph 5-75 on page 552[3], under the heading ‘matters of dispute not requiring resolution’, there is the following passage:

“The cases establish three situations where although there is a dispute as to the facts of the case, the court is not obliged to hear evidence under the principles laid down in Newton. The first is where the difference in the two versions of the facts is immaterial to the sentence (see R. v. Hall, 6 Cr. App. R.(S.) 321, CA; R. v. Bent, 8 Cr. App. R.(S.)19, CA). If the sentencer does not hear evidence, he should specifically proceed on the defendant’s versions: R v Hall, ante; see also R. v. Sweeting, 9 Cr. App. R.(S.) 372, CA.

The second exception is where the defence version can be described as “manifestly false” or “wholly implausible” (see R. v. Hawkins, 7 Cr. App. R.(S.) 351, CA; R. v. Bilinski, 9 Cr. App. R.(S.) 360, CA; R. v. Walton, ibid. at 107, CA; R. v. Mudd, 10 Cr. App. R.(S.) 22, CA). See also R. v. Palmer, 15 Cr. App. R.(S.) 123, CA and R. v. Broderick, idid. at 476, CA (couriers claiming to believe that they were carrying cannabis as opposed to a Class A drug).

The third exception is the case where the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence. These matters are likely to be outside the knowledge of the prosecution: see R. v. Broderick, ante.

Where the facts put forward by the defence do not contradict the prosecution evidence, the cases justify the following propositions.

(a) The defendant may seek to establish his mitigation through counsel or by calling evidence. The decision whether to call evidence is his responsibility, and there is no entitlement to an indication from the court that the mitigation is not accepted (Gross v. O’Toole, 4 Cr. App. R.(S.) 283, DC); but such an indication is desirable (R. v. Tolera [1999] 1 Cr. App. R. 29, CA).

(b) The prosecution are not bound to challenge the matter put forward by the defendant, by cross-examination or otherwise (R. v. Kerr, 2 Cr. App. R.(S.) 54, CA), but may do so (R. v. Ghandi, 8 Cr. App. R.(S.) 391, CA; R. v. Tolera, ante).

(c) The court is not bound to accept the truth of the matters put forward by the defendant, whether or not they are challenged by the prosecution (Kerr, ante): see R. v. Broderick, ante.

(d) In relation to extraneous matters of mitigation raised by the defendant, a civil burden of proof rests on the defendant, although in the general run of cases the court would accept the accuracy of counsel’s statement: R. v. Guppy, 16 Cr. App. R.(S.) 25, CA.”

15.  In the present case, the mitigation was far-fetched in the extreme.  The judge had given no hint of acceptance of the story he had been given and his words, cited earlier, at the conclusion of the mitigation to the effect that he was not bound by what the applicant had said to the police, and Senior Counsel’s response that the judge did not need to accept what he had been told, made it very clear that the judge had taken on board the issues which he had to consider.”

15.  In our present case, the third exception applies. The claim that the defendant just happened to walk by and saw the unsecured door does not contradict the prosecution’s case that the defendant had entered as a trespasser and stole. It is, however, a matter that may lessen the sentence.

16.  As such, the propositions set out above do come to be considered.

17.  I did indicate that I may not accept the defendant’s version of fact put forward by his counsel. There’s no indication from the defendant that he would choose to give evidence on the matter.

18.  Given the following observations, I find that I can accept the defendant’s counsel’s submissions that it was an opportunistic crime.

19.  According to the summary of facts, the rear entrance was usually unsecured. The prosecution is not able to say whether the door was wide open as shown in the photos at the time of the commission of the offence. The rear entrance was right next to the rear alley and accessible to any passer-by.

20.  On the balance of probabilities, the defendant’s version of fact could be true.

21.  As such, I find that it was an opportunistic burglary that would warrant some discount.

22.  As to the amount of discount, I have taken into consideration of the fact that having entered the premises, the defendant had walked a short distance to find the staff room, and once inside, he had taken his time to go through the backpacks that were on the sitting area to find the wallets inside. He then went through the wallets and took out the cash and the Octopus cards. The defendant had made good use of the opportunity and now should bear the full consequences of his action.

23.  Under the circumstances, I find that a 3-month reduction from the starting point should be applied. The reduced starting point is 27 months’ imprisonment.

Enhancement for aggravating feature

24.  As mentioned above, I find that the sentence should be enhanced for the defendant being a persistent offender. I find that the enhancement should be by 3 months. The sentence after enhancement is 30 months’ imprisonment.

25.  I find that the only mitigating factor is the defendant’s timely guilty plea, for which he is granted the full one-third discount.

26.  The defendant is sentenced to 20 months’ imprisonment.

27.  Given the nature and length of the present sentence, pursuant to s.6A(1)(b) of the DATC Ordinance, the DATC order imposed on 1^st September 2017 shall cease to have effect.