HKSAR v. Abeysinghe Mudiyanselage Lakmal Roshan Priyadarshana

DCCC 381/2020

[2020] HKDC 947

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 381 OF 2020

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REASONS FOR SENTENCE

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Charges

1.Defendant pleads guilty to one count of burglary.

Facts

2.“Pak Hai Kee” was a restaurant situated in Aberdeen.  During the pandemic period, it was not open for dine-in but would take delivery orders.

3.On 27 February 2020, at about 11:40 am, a staff member (PW1) was working in the kitchen.  He heard some noise.  He came out of the kitchen and found a stranger at the cashier’s area.  The glass door of the restaurant was originally closed and the roller shutter was half down, but now the door had been opened and the shutter had been lifted up.

4.The stranger noticed PW1 and started to leave the restaurant.  PW1 followed him out of the restaurant.  He then returned to the restaurant to tell his boss what had happened.  The police were called.

5.The police checked the restaurant’s CCTV.  The recording showed the stranger had gone behind the cashier’s desk and opened the drawer.  The stranger, however, failed to take away anything.

6.Around 2 pm that day, the police found Defendant two blocks away from the restaurant.  PW1 came and positively identified Defendant as the stranger who had gone into the restaurant that morning.  At that time, Defendant was still wearing the same outfit as seen in the CCTV recording.

Record

7.Defendant is aged 40.  He came to Hong Kong in 2004 to seek asylum.  His application is still ongoing.

8.Between 2006 and 2018, defendant had five previous convictions.  The third conviction was of theft.  Defendant was guilty of theft in July 2009.  He was sent to prison for six weeks on that occasion.

Mitigation

9.Defence Counsel points out that Defendant only had one theft conviction.  The other convictions are not similar in nature and obviously Defendant has no previous burglary convictions.

10.Counsel says at the time of the offence, the door of the restaurant was closed but not locked.  The shutter was half down.  Defendant took the opportunity to enter the restaurant with the intent to steal therein.  There was no forced entry or damage to any property inside the restaurant.  Defendant wanted to steal from the restaurant but he knocked over a bottle of water.  PW1 became alerted.  He came out of the kitchen to check.  Defendant then left the restaurant without taking away anything.

11.Counsel says, though the CCTV had captured Defendant’s acts, Defendant at that time was wearing a surgical mask.  Nevertheless, he admits his full guilt now.  He is really remorseful.

12.Counsel submits that the present case is more of an opportunistic theft.  There was no breaking in and no loss of property.  She asks the court to adopt a lower starting point, say, 15 months’ imprisonment.

13.Counsel says there is no aggravating circumstance in the present case and Defendant pleads guilty in good time.

Sentence

14.Defendant trespassed into a restaurant with the intent to steal therein in daytime.  At that time, the door of the restaurant was closed but not locked.  The roller shutter was half down.  Defendant gained entry without force or breaking in.  There is no evidence of any meticulous planning.  There is also no evidence that Defendant had used any equipment in his commission of the offence.

15.I agree with Defence Counsel that the present case can be considered as one of opportunistic theft, though involving trespassing.  Defendant entered the restaurant with the intent to steal therein but some noise alerted PW1. Defendant then left the shop before he could find anything to take away.  The restaurant suffered no loss.

16.Defendant was arrested soon in the vicinity.  He admits his guilt in court.

17.Defendant has been an asylum-seeker here since 2004.  I agree with counsel that it cannot be regarded as an aggravating factor in a burglary case of such circumstance.  Although Defendant has a few previous convictions, only one of which in 2009 was for theft.  The others are not related to dishonest crimes.

18.Nevertheless, counsel’s suggestion of a starting point as low as 15 months’ imprisonment is inapt.  The cited case of Law Tin Yam CACC 258/2010, is a case of extraordinary lenient sentence.  In the present case, I consider a starting point of 18 months’ imprisonment is appropriate.  Defendant pleads guilty well in time.  He is entitled to a one-third discount.  I thus sentence him to 12 months’ imprisonment.