HKSAR v. Lal Vipan

DCCC 765/2021

[2021] HKDC 1629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 765 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant, Val Vipan, in these proceedings is convicted of four counts of theft related charges upon his plea and admission of facts. They all took place in the early part of this year, that is 2021.

2.The 1^st count is one of theft.  On 22 February 2021, the defendant entered into a closed cook food centre and stole from one of the stalls three bottles of liquor, a travel bag containing $2,000 cash, some ornaments and some electric utensils.  The total value is about $3,400.

3.On the facts, it was revealed that at the time the shop was closed as did the whole market.  The food stall in question had no door or roller shutter.  In my view, this case is akin to a burglary of non-domestic premises.  Although the defendant broke no secured devices, his presence was obviously an intruder.  The market was closed, the food stall was no longer in business.  One can assume that the owner would not welcome anyone coming in. So on this basis, I believe that the criminality is akin to a burglary of a non-domestic premises for which there is already a clear sentencing guideline of 30 months.

4.The 2^nd charge took place on 10 April, again the same year, where a worker rather carelessly left his waist bag on the rear staircase on the rooftop of a building in Shanghai Street, and then went on with his business.  It was stolen by the defendant.  The waist bag contained, amongst other things, the victim’s wallet, a mobile phone, cash of $15,000 and his other personal documents. 

5.A case for theft has no sentencing guideline because the circumstances of its commission can vary from case to case.  In this case, I took the view that although the defendant did enter into the rear staircase of a building, the criminality would be slightly less than that of a burglary despite the fact that he obviously was not welcomed there.  I would sentence him on a basis of an opportunity crime and adopt a starting point of 12 months.

6.The 3^rd count took place on 14 April, where the defendant entered into a domestic premises situated in Jordan Road and ransacked its contents and went away with a number of personal ornaments and watches of unspecified value.  This is a burglary of a domestic premise.  There is very clear sentencing guideline of 36 months in the absence of more aggravating circumstances.  I see no reason to depart from the same.

7.For Charge 4, took place on 26 April this year, where the defendant entered into a restaurant early in the morning on two occasions, during which he took a mobile phone and a tablet computer from the shop.  His action was captured by the CCTV and his face was subsequently recognised by the police on 28 April 2021.  At the time, he was still holding the missing mobile phone and tablet computer.  Further items in relation to the 3^rd charge were found in the bag he was carrying in addition to two screwdrivers.

8.He admitted under caution in respect of the commission of Charges 1 and 2.  In fact, of all the charges in fact.

9.I turn to consider the mitigation in respect of this case.  In my view, the most valid one is that he pleaded guilty and he is entitled to the one-third reduction in his total sentence.

10.Secondly, not exactly a mitigating factor but a sentencing principle which I would have to defer to, namely, the totality principle.  The defendant had committed the serious offences and pleaded guilty to all of them in one go.  Therefore, I would have to assess the criminality of the whole proceedings. 

11.There are aggravating factors.  To start with, the defendant had committed all the offences within a very short span of time, from 22 February to 26 April.  The defendant is not a person with a clear record.  Therefore, he would not be able to ask this court to exercise its power of leniency.

12.The defendant is a 24-year-old man.  He was unemployed at the time he was arrested.  And tried as his counsel might, there is not very much to be said in his favour.  That he has family liability, he had to provide for his sisters in their studies were not exactly a mitigating factor.

13.Having considered the matter as a whole, I would first order the 1^st count to be 30 months’ imprisonment.  The 2^nd count, on the basis of an opportunity crime, to be in 12 months.  The 3^rd count, being a burglary of domestic premises, the starting point will be 36 months.  The 4^th count, burglary of a business premises, to be in 30 months. 

14.I also consider the fact that some of the items had been recovered.  So in respect of the 2^nd count, 4 months will be running consecutive to the 1^st count.  In respect of the 3^rd count, 10 months to run consecutive.  In respect of the 4^th count, 6 months will be ordered to run consecutive to the others.  In all the total starting point should be 50 months.  It is reduced to 33 months after credit is given to his plea of guilty and the fact that some of the items had been recovered.

15.The four counts, he is to serve a total of 33 months consecutive to whatever sentence he has already been serving.