HKSAR v. Babar

DCCC 518/2018

[2019] HKDC 582

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 518 OF 2018

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of attempted theft, contrary to section 9 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2] (charge 1) and one charge of attempted burglary of domestic premises contrary to section 11 of the Theft Ordinance[3] and section 159G of the Crimes Ordinance.

2.Full particulars of the offences are set out in my reasons for verdict handed down today.  In summary on 24 March 2018 the defendant entered the fenced area on the ground floor of House No. 103 Yau Tam Mei Tsuen South District in Ngau Tam Mei and attempted to steal the property of Mr Lau Chi Kong (charge 1) and on 31 March 2018 attempted to burgle House No.187 Yau Tam Mei Tsuen East District in Ngau Tam Mei (charge 2).

Charge 1

3.At about 1210 hours on 24 March 2018 Mr Lau Chun Ting (PW1), the nephew of Mr Lau Chi Kong, walked past his uncle’s home (House No. 103) when he saw the defendant inside the fenced area but outside the main house.  The defendant was standing between a small red table and a ball searching through items on a table.  The defendant picked up a pair of black and yellow gloves from the table. 

4.PW1 did not know the defendant and was not aware whether his uncle had invited any South Asian male to his home.  PW1 therefore shouted at the defendant “What are you doing?”  When the defendant realised PW1 had seen him he put down the gloves and left through an open gate.

5.As the defendant was leaving PW1, who was alone, used his mobile phone and took a photograph of the defendant.  The defendant then left on his bicycle The defendant was arrested on 31 March 2018 in connection with charge 2. 

Charge 2

6.At about 1845 hours on 31 March 2018 Mr Tseng Tak Kwong(PW2) was driving his car when he saw the defendant was holding objects like a screwdriver trying to prize the lock of the gate to House No. 187.  After prizing the lock, the defendant pocketed the screwdriver and left on his bicycle up the road.  Mr Tseng chased after the defendant who was stopped about 150 meters from House No. 187 by some villagers. 

7.SPC 47135 (PW3) arrived at 1856 hours at which time he saw a few persons surrounding the defendant.  After making investigation with Mr Tseng SPC 47135 arrested and cautioned the defendant for attempted burglary.

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Davies. 

Criminal record

9.The defendant cannot be given credit for a clear record having previous convictions for possession of an offensive weapon, robbery and common assault. 

10.The defendant last appeared in court on 6 August 2018 when he was sentenced to 4 months’ imprisonment for common assault[4]. Before passing sentence the judge ordered a background report.  I have read that report, a copy of which has been provided to Mr Davies for his consideration. 

Starting point

11.Mr Davies submits that the attempted theft was opportunistic.  Taking into account that the gate of the fence was not locked the theft can be considered as opportunistic.  I am satisfied the correct starting point for the attempted theft at House No. 103 is 4 months’ imprisonment. 

12.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. 

13.Mr Davies submits a lower starting point is appropriate because the defendant did not break into the house only the gate to the yard.  Taking into account this was an attempt and that the occupant Mr Lai was not at home at the time, I am satisfied a starting point of 2 years and 9 months’ imprisonment is appropriate.

Aggravating feature.

14.I have had the opportunity of perusing the case papers in DCCC 896/2017 for which the defendant was sentenced to 4 months’ imprisonment in August last year.  The offence was committed on 24 June 2017.  The defendant was arrested the same day and granted bail on 24 July 2017.  Bail was revoked in April 2018 after the arrest of the defendant for the present offences.

15.The present offences were therefore committed whilst the defendant was on bail.  Commission of offences on bail is an aggravating feature of sentence.  In the circumstances I enhance the starting point for the burglary by 3 months to 3 years’ imprisonment. 

Police commendation

16.In June 2016 the defendant saved the life of a man who tried to commit suicide by jumping into the Yuen Long nullah.  This is referred to in the background report[5]. Mr Davies has also submitted copies of photographs taken from the internet.

17.Although referred to in the background report no specific mention was made by the judge in his reasons for sentence that he took this matter into account.  Mr Davies therefore submits credit should be given to the defendant for saving the life of another person for which he was given a police commendation[6]. 

18.In the circumstances I reduce the sentence on the burglary charge by 2 months to 2 years and 10 months’ imprisonment. 

Totality

19.The two offences are separate and distinct for which consecutive sentences are appropriate, subject to the totality principle.  Taking into account that nothing was stolen, I am satisfied a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7].

Sentence

20.The defendant is sentenced as follows:

Charge 1 – 4 months’ imprisonment; and

Charge 2 – 2 years and 10 months’ imprisonment;

I order 2 months of the sentence on charge 1 to be served consecutively and 2 months concurrently to the sentence on charge 2 making a total sentence to be served by the defendant of 3 years’ imprisonment.