HKSAR v. Rai Mahesh

DCCC 1108/2017

[2018] HKDC 623

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1108 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Rai Mahesh pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The particulars of offence are that Rai Mahesh on 16 June 2017, in Hong Kong, having entered as a trespasser part of a building known as 1^st Floor, No 1178 Canton Road, Mong Kok, Kowloon, stole therein cash of $100 Hong Kong currency.

Admitted Facts

3.The facts admitted by Mr Rai may be summarized as follows.

4.PW1 and his family and dog lived in the subject premises which had an open platform outside the living room window.

5.On 16 June 2017, at around 4 am, PW1 heard his dog bark in the living room.  He then went to check the living room where he saw a male (later identified to be Mr Rai) outside his living room window, which was wide open.  This male fled to the rear lane.

6.The premises were not ransacked but PW1’s handbag in the living room had been slightly relocated and cash of $100 previously placed inside it was found missing.

7.Case was reported and the police found Mr Rai’s fingerprints on the window frame of the living room.

8.On 22 October 2017, Mr Rai was arrested.  Now he admits that he was the burglar involved.

Criminal record

9.The agreed criminal record reveals that Mr Rai has 5 previous convictions 4 of which were for theft for which he was sentenced to imprisonment terms ranging from days to months. The last one was in October 2016 for which he was sentenced to a term of 5 months and 1 week’s imprisonment.

Antecedents

10.The agreed antecedents statement shows that Mr Rai is aged 40 (39 at the time of the offence); he received primary school education and was unemployed on the date of arrest.

Mitigation

11.Ms Ivy Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Rai.

12.The following is a summary of the mitigation submissions.

13.Mr Rai migrated to Hong Kong in 1988 on the sponsorship of his father but he had lost contact with his family for 10 years.  He had been a restaurant waiter but lost his job 1 ½ years before the offence.  During that period of 1 ½ years, he worked on and off and on a part-time basis in restaurant kitchens.  When he had no work, he borrowed from friends.  He was a street sleeper at the time of the offence and because of momentary greed, he committed this offence on his own in which only $100 was involved.

14.Initially, it was submitted by Ms Lau on instructions that only the right forearm of Mr Rai had intruded into the premises but after an adjournment was granted to sort out the circumstances of commission of the offence, Ms Lau and Mr Rai himself agreed the following caveat placed upon the facts previously admitted by Mr Rai.

15.The caveat read out by the prosecution was in the following terms:-

(a) Mr Rai did enter the premises with his full body;

(b) The sofa measured 1.8 metres from side to side;

(c) The black bag that is featured prominently in the photographs (also mentioned in para 4 of the Summary of Facts) was originally placed at the left end of the sofa;

(d) The same bag had been tampered with but it did not originally contain the $100 that was stolen; and

(e) The bag from which the $100 had been taken had not been relocated but was shown in the photographs as being tucked between the right back of the sofa and the wall.

16.Ms Lau continued to submit that Mr Rai pleaded guilty to the offence and asked for a lenient sentence.

17.On enquiry by the court, Ms Lau asked the court not to take into account the previous thefts record of Mr Rai and emphasized that this was Mr Rai’s first burglary conviction.

18.Again on enquiry by the court, Ms Lau submitted that, despite the intrusion having taken place during a time of the night when it would be expected that the premises would be occupied, Mr Rai had not frightened the occupants nor was there any confrontation in fact.

Sentence

19.I have considered the mitigation submissions made by Ms Ivy Lau.

20.I have viewed the 2 sheets of 10 copy photographs submitted by the prosecution.

21.Apart from the early plea of guilty, there are no other mitigating factors worthy of attracting any further discounts.

22.The conventional starting point for burglary of domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 3 years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

23.I have considered whether to increase the starting point in light of Mr Rai’s previous records but have decided against it in view of the small amount stolen and also as an act of leniency towards Mr Rai.

24.However, I cannot ignore the fact that this case has an aggravating feature in that the burglary was committed in the early hours of the morning when the premises were likely and expected to be occupied (see HKSAR v Song Juanhua, CACC 362/2006, HKSAR v Tong Fuk Sing [1999] 3 HKC 332 and HKSAR v Ng Wai Hing [2003] 2 HKLRD 338).  Here, the subject premises were in fact occupied by at least PW1 (and his dog) at the material time.

25.Taking that into account, I shall therefore adopt a starting point of 3 years and 3 months’ imprisonment.

26.Mr Rai is entitled to a 1/3 discount for his early plea.

27.I sentence Mr Rai to a term of 2 years and 2 months’ imprisonment.