HKSAR v. RANAWEERA ARACHCHILAGE RUWAN N ARACHCHILAGE RUWAN NISHANTHA R AND ANOTHER

DCCC 1557/2024

[2025] HKDC 1612

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1557 OF 2024

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

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

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

REASONS FOR SENTENCE

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

1.  On this indictment the 2^nd accused has entered a plea of guilty to the 1^st  charge of attempted theft of a bicycle and both defendants, both 1^st and 2^nd defendants, entered pleas of guilty to a 2^nd charge of burglary occurring on 27 May 2024 at a premises described as a warehouse in Castle Peak Road in Yuen Long where 40 metres of copper wire were stolen, the grand total value being about $40,000, I understand.

2.  The facts on which the prosecution relied to prove the indictment are as follows:

So the 1^st charge against the 2^nd defendant concerns the theft of a bicycle. The facts show that the 1^st prosecution witness had parked his bicycle at a car repairing shop in Yuen Long which was an open-sided workspace and the witness discovered it was missing the next day. The CCTV camera of the shop captured the 2^nd defendant and another man trying to put the bicycle inside the motor vehicle that they had alit from. They failed to load the bicycle and left it in situ.

3.  The 2^nd charge for which both defendants pleaded guilty concerns this warehouse in Yuen Long.  The premises in question is described as a warehouse.  It is said to be enclosed by metal sheets and hoardings and it was secured by a chain-link fence.  Part of it is open.  The entries were protected by padlocks.  A certain amount of copper wire were stored there.

4.  On 27 May 2024 at around 2 o’clock in the morning, a motion detector in the warehouse showed that the warehouse had been entered.  Eventually the 1^st and 2^nd defendants and another man were seen rummaging through the copper wire, that could be shown on the CCTV camera.  Eventually the police attended and the total of the three men, that is the 1^st and 2^nd defendants and another man fled away.  Forty metres of copper wires were stolen with a grand total value of $40,000.

5.  The 1^st defendant was arrested on 27 May 2024 and the 2^nd defendant on 30 May 2024.  Both the 1^st and 2^nd defendants later made admissions and inside the warehouse burglary tools were found including bulk cutters, electric drills and cable ties.

6.  Prosecution have also presented at the 1^st defendant’s request a statement from a Detective Senior Inspector Wong which I will deal with when dealing with the 1^st defendant’s sentence.

7.  As far as the antecedents are concerned, the 1^st defendant is described as an asylum-seeker, that is a Form 8 holder.  He has a number of convictions for dishonesty, none are similar.

8.  The 2^nd defendant is also described in the same way as a Form 8 asylum holder.  He has convictions in the past for going equipped for stealing in 2016 and of relevance to sentence today, a burglary in 2018 for which he was sentenced to 20 months’ imprisonment and a further burglary in 2021 for which he was sentenced to 24 months’ imprisonment.

9.  And I will deal now with the mitigation advanced by the defendants.  The 1^st defendant was born in Sri Lanka and is a Sri Lankan.  He is 45 years old, has been in Hong Kong since 2007 and is a Form 8 holder.  So he has been here a long time.  I am told his father passed away when he was young, he has family still in Sri Lanka which he supports. 

10.  It is said the 1^st defendant committed the offence of burglary out of financial need.  Shown that his criminal record shows he has previous convictions for petty theft such as shoplifting which had involved food items of low value which were used for self-consumption which is probably related to his status as a Form 8 holder in Hong Kong.  He asks for the court’s mercy and also for the court to take into account the contents of the letter that I have received from the police.

11.  As far as the 2^nd defendant’s mitigation is concerned, again he has entered pleas of guilty to both the charges he faces.  It said in respect of the 1^st  offence, that is the attempted theft, the items were of low value and of course was left at the scene.  As far as his personal background is concerned, he is also born in Sri Lanka, now aged 43, educated up to junior secondary school level.  He has been a claimant or torture claimant in Hong Kong for some 20 years, still does not have any permanent identity card in Hong Kong.  He admits to his criminal record and admits to two previous convictions for burglary which dated to 2018 and 2021, some four years ago now.

12.  Now I am also referred in the course of the mitigation to the approach to sentencing which I shall now deal with because it is common to both defendants.  As far as the 1^st charge is concerned, I think it can properly be described as petty theft.  I have been referred to a case of HKSAR v Jareen which is an unreported Magistracy Appeal where a similar case leads to a starting point of 9 weeks’ imprisonment of a final sentence of 6 weeks’ imprisonment.  That seems to be about the general range of sentencing for offences such as that nature where a person has a history of dishonesty.

13.  As far as the 2^nd defendant is concerned, the burglary charge, there are guideline sentences for burglary.  I refer to the case of HKSAR v Fan Kit Hung, CACC 62/2009, and the passage that deals with the various aggravating features that can exist in a burglary.  I will note at this stage, the normal sentence for a non-residential burglary on a plea of guilty for a person of clear record is a sentence of 13 months’ imprisonment.  That is subject to either aggravating or mitigating factors. 

14.  In this case, the aggravating factors can be if it is said the offence is carefully planned, skilfully executed involving the use of heavy instruments or equipment.  Secondly, the offence is committed by two or more people.  Thirdly, the offence targets substantial premises and involves substantial premises.  Fourthly, the offender is a professional burglar and not just an opportunist.  Fifthly, the offender has previous convictions, particularly previous convictions of a similar nature, and sixthly, the offender commits multiple offences.

15.  Obviously in respect of the two defendants given their history, particular their antecedent history, there will be different factors to be taken into consideration when assessing the starting point for sentence for each of them.  It may be said this burglary as shown on its facts involves some planning, some tools were used in execution and certainly at least three men were involved in its execution.  However, in mitigation it can also be said this was described as a warehouse, it is really just hoardings of sheet metal.  Secondly, the value of the items stolen is not large, $40,000, and the items stolen are not particularly valuable, it being copper wire.

16.  Also, when considering the overall sentence I must bear in mind any issues of totality.  Another factor in relation to sentencing is that both the defendants are Form 8 holders and that is an aggravating factor and an addition to sentence of up to 6 months’ imprisonment can be imposed even in a District Court case for that aggravating factor.

17.  I will deal now with the 1^st defendant as he only faces the single charge on the indictment on the 2^nd charge. The starting point for sentencing in respect of him, of course this is a non-domestic burglary, is 30 months’ imprisonment.  There is the aggravating factor in respect of the burglary and I have already outlined that this is a burglary where some equipment was used and some planning was involved and where multiple persons were involved in the burglary.  I consider that having regard to the actual premises of the nature of the items taken, that would lead to an enhancement of sentence of 3 months’ imprisonment. 

18.  The 1^st defendant will also have his sentence enhanced by a further 3 months for the fact that he is a Form 8 holder.  That gives me a starting point for sentence of 36 months’ imprisonment. 

19.  The 1^st defendant would normally on his plea of guilty be entitled to a one-third discount from that or 33.3 per cent.  However, in this case there are special factors that relate to the matters dealt with in the police letter that I have already referred to.  I do not need to go into the details of that for the purpose of sentencing.  What I shall do is allow an additional deduction from that sentence which will reflect a deduction for sentence in excess of 40 per cent from the original starting point.  I will deduct in fact a total of 16 months from that sentence, leading to a final sentence for the 1^st defendant on the 2^nd charge of 20 months’ imprisonment.

20.  As far as the 2^nd defendant is concerned, he faces the two charges.  On the 1^st charge, I take a starting point of 6 weeks’ imprisonment, reduce that to 4 weeks’ imprisonment for the defendant’s plea of guilty.  On the 2^nd charge, that is the burglary, I have already indicated the starting point should be one of 30 months’ imprisonment. 

21.  Having regard to the nature of the burglary and the fact that it was committed by multiple persons there is the added enhancement of 3 months for that.  The 2^nd defendant also has previous convictions for burglary.  Although it is some time ago, it is still an enhancement must be considered for that.  I am going to enhance a further 3 months for that factor.  And finally, the 2^nd defendant is a Form 8 holder which leads to a further enhancement of 3 months for that factor.  The starting point for sentencing is now one of 39 months’ imprisonment. 

22.  The 2^nd defendant is entitled to a one-third discount for his indication of plea of guilty.  That leads to a sentence of 26 months’ imprisonment.  There of course is the 4 weeks for the 1^st charge to take into consideration.  I have regard to the overall totality.  I am going to order that the 1^st and 2^nd charges be run concurrently one to another, leading to a final and total sentence of 26 months’ imprisonment for the 2^nd defendant.