HKSAR v. Thapa Kishan

DCCC 464/2019

[2019] HKDC 1480

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 464 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to four charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by the defendant on 31 October 2019.  In summary between 28 November 2018 and 24 February 2019 the defendant burgled three restaurants and one incense shop. 

Charge 1

3.CCTV captured the defendant entering Li Do restaurant in Yau Ma Tei at 12:46 a.m. on 28 November last year and stealing $1,010 from the cash register.    

Charge 2

4.CCTV captured the defendant entering Little Fusion restaurant in Mong Kok at around 4:30 a.m. on 15 February 2019 and ransacking the premises and stealing $5,000 from the cash register.   

Charge 3

5.CCTV captured the defendant entering Shabu Shabu & Dim Sum restaurant in Yau Ma Tei at around 5:18 a.m. on 19 February 2019 and stealing a tips box containing about $3,000 from the cashier desk.   

Charge 4

6.CCTV captured the defendant passing by the rear door of premises situated on the ground floor of No. 321 Ferry Street in Mong Kok at 10:38 a.m. on 24 February 2019.  The premises were used as an incense shop and the residence of Ms Yeung and her family. 

7.While Ms Yeung was working in the kitchen CCTV footage shows the defendant leaning his body into the kitchen and stealing Ms Yeung’s handbag (valued at $500) which was hanging on the corner of a table inside the kitchen.  Inside the handbag was Ms Yeung’s mobile phone (valued at $2,400) and her wallet (valued at $400) containing $2,500 cash, her identity card, Home Visit Permit; Octopus card and bank card.

Arrest

8.The defendant was arrested at his home on 3 March 2019.  Inside the defendant’s home the police seized a green jacket and a striped top the defendant was wearing when he burgled the Shabu Shabu & Dim Sum restaurant; a Nike jacket the defendant was wearing when he burgled the incense shop and $1,020 cash. 

9.Under caution and in a subsequent video recorded interview the defendant admitted he stole items from the four premises and that he had spent all the stolen cash.

10.The total value of the stolen property was $14,810.

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Pannu, including that the defendant committed the burglaries to feed his family because he was unable to find work after his release from prison[2]. 

Starting point

12.The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

13.Mr Pannu submits the burglaries were opportunistic[3].  

14.I do not agree the first three burglaries were opportunistic.  Although the doors were not secured the defendant did not steal food or items of little value[4].  The three burglaries were committed in the early hours of the morning when the defendant was clearly looking for premises in which he could burgle and steal cash.  The cash which in each burglary was stolen from the cash register varied between $1,010 and $5,000.   

15.I am satisfied the proper starting point after trial on each of the first three burglaries is 2 years and 6 months’ imprisonment. 

16.Ms Yuen accepts that for the fourth burglary that the defendant only leaned his body into the kitchen and did not walk into the kitchen or the shop.  In the circumstances I accept the fourth burglary can be classified as opportunistic, akin to that of a sneak thief.  I am satisfied the proper starting point on charge 4 is 1 year and 6 months’ imprisonment.

Aggravating features

17.The defendant has appeared in court on nine occasions accumulating a total of thirteen convictions, seven of which are for offences of dishonesty with two for burglary[5].  The defendant last appeared in court in September 2017 when he was sentenced to 21 months’ imprisonment for the two offences of burglary[6].

18.The defendant was discharged from prison on 9 November 2018[7] and within nineteen days committed the first of the four burglaries.  I am satisfied the defendant is a persistent offender. 

19.I enhance the starting point for each burglary by 3 months making a starting point of 2 years and 9 months’ imprisonment on each of charges 1-3 and 1 year and 9 months on charge 4.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 1 to 3 to 1 year and 10 months’ imprisonment and on charge 4 to 1 year and 2 months’ imprisonment.

Totality

20.Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[8].

21.Taking into account all the circumstances of the four burglaries including that the second burglary was committed over two and half months after the first burglary and that the second, third and fourth burglaries were committed within a period of ten days; the total value of the stolen property was $14,810 and the defendant’s co-operation with the police,I am satisfied a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the four charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[9].  

Restitution

22.Sentence was adjourned until today for the defendant’s wife to arrange to pay full restitution into court.  The sum of $14,810 has now been paid into court.  In recognition of restitution having been made I reduce the total sentence by 2 months to 2 years and 10 months’ imprisonment. 

Sentence

23.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment and ordered to pay $1,010 compensation to Li Do restaurant from the monies paid into court;

Charge 2 – 1 year and 10 months’ imprisonment with 4 months consecutive and 18 months concurrent to charge 1 and ordered to pay $5,000 compensation to Little Fusion restaurant from the monies paid into court;

Charge 3 – 1 year and 10 months’ imprisonment with 4 months consecutive and 18 months concurrent to charges 1 & 2 and ordered to pay $3,000 compensation to Shabu Shabu & Dim Sum restaurant from the monies paid into court; and

Charge 4 – 1 year and 2 months’ imprisonment with 4 months consecutive and 10 months concurrent to charges 1, 2 & 3 and ordered to pay $5,800 compensation to Ms Yeung from the monies paid into court;

The total sentence to be served by the defendant is 2 years and 10 months’ imprisonment.

[1] Cap 210.

[2] See §6.5 of the written mitigation submission of the defendant.

[3] See §§5.7 & 6.7 of the written mitigation submission of the defendant.

[4] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Hai Chung Po CACC 115/2013.

[5] The date of sentence for items 6 & 7 on the criminal record was the same day

[6] DCCC 425 & 505/2017.

[7] See §F) of the antecedents and §6.5 of the written mitigation submission of the defendant.

[8] See for example Attorney general v Lui Kam Chi [1993] 1 HKC 215

[9] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.