HKSAR v. Rai Milan

DCCC 724/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 724 OF 2016

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Reasons for Sentence

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1.The defendant pleaded guilty to all five charges in the charge sheet and was convicted accordingly.

The Prosecution’s Case

1st Charge

2.Hang Fat Petroleum Company Limited is situated at Ground Floor, No. 15 Bowring Street in Yau Ma Tei.  There is an office area which is linked with the store in the front by a door. Mr Chow, the owner of the firm, closed his shop and bound a pad of banknotes in the sum of $25,000 with rubber band.  He put the money into a drawer of a desk which was not locked and was in the front store.

3.CCTV device was installed in the front store, and Chow could see the footage in the office area.  At about 8 pm on 1 February 2016, Chow saw a Southeast Asian male wearing dark clothes entered the store in the front, took away the money inside the said drawer and then fled.  Chow gave chase but lost sight of the culprit.

4.Subsequently, in an office identification parade held on 11 May 2016, Chow identified the defendant as the culprit.

2nd Charge

5.At around 5:30 pm on 2 April 2016, the defendant entered a goldsmith and jewellery shop in Nathan Road.  He asked to see some gold necklaces and asked to try a gold necklace worth about $8,690.  The defendant put on the necklace and negotiated the price with the staff, Miss Zhao.  The defendant suddenly fled with the property.  The CCTV installed in the shop captured a male resembling the defendant entering the shop and later dashing out from the shop.

6.Subsequently, the defendant admitted in the video-recorded interview that he stole the said gold necklace and sold the same to another person for $6,500. He further confirmed that he was the person as captured by the said CCTV footage.

3rd Charge

7.Similarly, the defendant entered another goldsmith shop in Shanghai Street, Yau Ma Tei at about 4:45 pm on 8 April 2016.  He asked to see some gold rings.  The defendant had two gold rings with the value totalled $11,340 with him and then fled.  The CCTV installed in the shop captured the course of the stealing process.

8.The defendant in the video-recorded interview confessed that he stole the two gold rings.  He sold them for $8,950.  He confirmed his picture in the said CCTV footage.

4th Charge

9.Mr Sun was the owner of a hawker stall in Temple Street, Yau Ma Tei.  At about noon on 27 April 2016, the defendant stole the mobile phone which was placed on a table in the stall and was worth about $1,200 and fled.  Sun gave chase and subsequently the defendant was subdued by other passers-by.  Sun recovered his phone from the defendant.

10.Subsequently, the defendant admitted the offence in the video-recorded interview.

5th Charge

11.After the defendant was arrested on 28 April 2016, he was taken to the Yau Ma Tei Police Station.  The defendant was placed in a temporary cell holding area and was guarded by a police officer.  At about 11:20 pm on the day, the defendant suddenly pushed the chest of PC19649, causing the latter to lose his balance.  The defendant then jumped across the reception table in the Report Room and fled from the main entrance of the station.  The defendant bumped with great force into the back of WPC1924, and the latter also lost her balance.  A few police officers gave chase and eventually the defendant was subdued.  The defendant had put up rigorous struggle and was about 67 metres away from the police station when he was intercepted.

12.Medical examinations show that WPC1924 sustained tenderness on her right ankle and foot.  PC2199 sustained tenderness on his right forearm and abrasion on his right elbow in the course of struggling with the defendant.  The defendant admitted the offence in the video-recorded interview.

Mitigation

13.The defendant is now aged 22 and single.  He was born in Nepal and was at Form 4 level in Nepal.  He came to Hong Kong in 2004 when he was aged 10 on the basis of family reunion.  His father now resides in Nepal while his mother is living in the UK.  The defendant worked as a construction worker on casual basis with the monthly income of about $25,000.  The defendant is a drug addict and has been taking heroin for one year.

14.The defence tendered a total of four cases for the court’s reference: HKSAR v Wong Mei Fung HCMA 654 of 2011, HKSAR v Yeung Kam Tung CACC 427 of 2012, HKSAR v Lung Tsu Tung CACC 197/2007 and HKSAR v Li Shing Ming DCCC 799 of 2015.  Despite the court’s observation relating to Charge 1, the defence urged the court to sentence the defendant on the basis of the theft basis.  The defence also urged the court to grant the full one-third discount in sentence despite the defendant’s late plea.

Sentence

15.The defendant is aged 22, a Hong Kong resident.  He had a clear record but apparently did not treasure what he has or can have in Hong Kong.  He committed a series of criminal wrongs in Hong Kong at least over a period of three months.  I would not speculate whether he had committed other offences apart from those laid against him in the charge sheet.

16.I would say the defendant was “lucky” in that the prosecution did not charge the defendant with the offence of non-domestic burglary in respect of Charge 1 for which the starting point of sentence is 2½ years.  This court is duty-bound to sentence the defendant on the basis of his plea and the admission to the Summary of Facts.  In my view, this issue of the offence of burglary or theft was not canvassed or discussed in the case of Wong Mei Fung HCMA 654/2011 wherein the appellant was convicted of the offence of theft of $280 and was sentenced to 6½ months’ imprisonment.  There are no sentencing guidelines for this type of theft offence.  Each case depends on its own specific set of facts.

17.The fact that the defendant committed a series of theft over a period of three months (from February 2016 to April 2016) is an aggravating factor.  He acted alone, and the way the offence was committed was not complicated at all.  I take the view that what the defendant did in relation to Charges 2 to 4 was not strictly speaking cases of theft by snatching.  On the other hand, I am of the view that the nature of offence of Charge 1 as disclosed in the Summary of Facts is different from Charges 2 to 4.

18.The most important mitigating factor is the defendant’s guilty plea.  He had indicated the not-guilty plea on 2 September, the very date when the Court of Appeal judgment in Ngo Van Nam CACC 418/2014 was handed down.  That said, I will give the defendant the full one-third discount in sentence upon his pleas.

19.Taking all factors into consideration, I will sentence the defendant as follows:

(1) Charge 1 - starting point of 18 months, and with one-third discount, I sentence the defendant to 12 months.

(2) Charges 2 to 4 - starting point of 12 months for each of these three charges, and with his plea, the sentence was reduced to 8 months, each to be served concurrently. In light of the totality principle, I order that 3 months of the sentence is to be served consecutively to the sentence for Charge 1.

(3) Charge 5 - Although there is no tariff, the sentence tends to be in the range of 3 to 12 months: Sentencing in Hong Kong (2015) 7th edition at page 638. This offence captures a complete different nature from the remaining charges. Two police officers sustained minor injuries and the defendant was re-arrested outside the police station. I will take 6 months as the starting point, and with his plea, the sentence is reduced to 4 months. The sentence is to be served consecutively to the other sentences abovesaid.

20.To conclude, I sentence the defendant to 19 months’ imprisonment (that is, 12+3+4 months).