HKSAR v. Masanthiah Jacky

DCCC 522/2021

[2021] HKDC 1521

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 522 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.The particulars are that the defendant on 30 March 2021 burgled a stall in Dragon Centre in Sham Shui Po, Kowloon, stealing one watch case and a powerbank.  He committed the 2^nd charge on the following day, 31 March, when he entered Dragon Centre again as a trespasser with intent to steal therein. 

3.The facts of this case are straightforward.  The owner of an open stall inside this shopping mall, Dragon Centre, PW1 had closed her stall at about 8 pm on 29 March 2021.  She placed a canvas or a tarpaulin over her entire stall before leaving.  It was not locked up securely as such. 

4.On the following day, she discovered that an Apple watch case and a powerbank were missing.  CCTV footage was reviewed and the defendant was captured entering the mall through a fire exit at about 2 am on 30 March 2021 and stole this owner’s property from her stall. 

5.On the following day at about 12:20 am, a security guard heard a fire alarm go off at a fire exit on the 5^th floor of the same shopping mall.  The defendant was intercepted nearby and the police arrived soon after.  The defendant resembled the burglar seen on CCTV the morning before, stealing from PW1’s stall.  The defendant was arrested and that stolen property recovered from him.

6.Under caution, he made a full admission and confessed he had burgled the night before and was entering the shopping mall again with intent to steal.  He admitted he had entered through a fire exit on both occasions.  He was looking for electronic products to steal.  The two items he had stolen were valued at $226. 

Mitigation

7.The defendant is now 22 but 21 years old when he committed these offences.  He was born in Hong Kong and educated here.  At the time of his arrest, he was working as a chef.  He has a clear record. 

8.I have heard full mitigation from Mr Wong.  The defendant’s best mitigation is his plea.  I have been told his parents are separated and he lives with his mother.  I note they are both in court today.

9.The defendant was educated to Form 6 and sat his Diploma of Secondary Education Examination in 2018.  Although he was not a particularly academic student, he managed to complete his education and has remained gainfully employed since leaving school.  When arrested, he was earning about HK$15,000 per month and gave his mother HK$6,000 per month as financial contribution for living expenses. 

10.Mr Wong has stressed the following mitigating factors, that is he was relatively young at the time of these burglaries and was a first-time offender.  He did not carry tools nor did he break into the shopping mall.  He knew how to enter through a fire exit.  He did not ransack PW1’s stall or any other stall or shop.  He did not break into her stall but lifted the canvas or tarpaulin to see if there was anything to steal.  Herein, he stole two items probably from many and they were not particularly valuable.

11.When arrested, he co-operated with the police and made a full confession.  He has been in custody since his arrest and is very remorseful.  I have had a letter from the defendant himself who regrets disappointing his mother and will never reoffend.  

12.The normal starting point for a burglary of non-domestic premises is 2 years and 6 months where there are no aggravating or mitigating factors.  Mr Wong knows this is the usual tariff but has submitted the tariffs are not strait jackets and provided the sentencing court can give proper reasons, there may be room for departing from the norm. 

13.I have considered the defendant’s age, background, clear record, facts of the case and although it is not a situation where the burglary was opportunistic or chanced upon but here, the defendant had easy access into a mall and open stalls covered by tarpaulin. 

14.I accept his remorse is genuine and his determination to rehabilitate real.  I intend to impose a starting point of 2 years and 3 months for both Charges 1 and 2. 

15.The defendant is entitled to a full discount of one-third for his plea at the earliest opportunity.  Accordingly, after that discount is applied, the defendant is sentenced to 1 year and 6 months for each charge. 

16.The defendant has committed two burglaries but one day apart.  Having taken into account that fact, as well as the totality principle, I will order both sentences to run concurrently.  Therefore, the defendant is sentenced to a total of 1 year and 6 months’ imprisonment.