HKSAR v. Miranda Ricardo D

DCCC 774/2021

[2022] HKDC 1213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 774 OF 2021

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REASONS FOR SENTENCE

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

Facts

2.At all material times, “MEHFIL” is a bar located at Ground Floor and Cockloft, No. 13 Lan Kwai Fong, Central (“the Bar”). 

3.At around 12:45 a.m. on 21 November 2020, Mr. Shrestha (PW1), owner of the Bar, closed and secured the Bar by locking the main door using a password padlock and a padlock holder. 

4.At about 4:30 a.m. on the same day, Mr. Thing (PW2), friend of PW1, walked past the Bar and noticed that the main door of the Bar was left ajar but there was no one inside the Bar.  PW2 thus informed PW1 by phone.

5.At about 5:15 a.m. on the same day, PW1 arrived at the Bar and found that the padlock used for securing the Bar was broken.  Further, he found that the top drawer of the cupboard next to the bar counter was prized open.  Prize marks were observed on the cashier drawer, although the same was not prized open.  Case was reported.

6.Upon checking, PW1 found the following items missing:

(a)  8 bottles of liquor (total value: HK$4,330);

(b)  1 tips box containing cash of about HK$100; and

(c)  Cash of HK$1,600.

7.CCTVs in the vicinity of the Bar captured that on 21 November 2020 at around 3:33 a.m. (CCTV time), the defendant, who was wearing a red tee-shirt with a logo in gold, lingered in the vicinity of the Bar with two other unknown persons.  He then approached the entrance of the Bar briefly and then walked away from the Bar.  Meanwhile, the other unknown persons wandered on the street opposite the Bar.  At around 3:37 a.m. (CCTV time), the defendant approached the entrance of the Bar the second time.  He stayed thereat for about 25 seconds, during which his hands made some movements in close proximity to the door of the Bar.  Thereafter, the defendant walked across the street, leaving the Bar.  At around 3:43 a.m. (CCTV time), the defendant entered the Bar through the main door.  Around 1 minute later, one of the unknown persons entered the Bar.  At around 3:58 a.m. (CCTV time), the defendant and an unknown person left the Bar.  The defendant was holding a stuffed plastic bag as he left the Bar.

8.The aforesaid CCTV footages were shown to PW1.  PW1 recognized the defendant in the CCTV footages as the defendant was employed as a bartender at the Bar between 2017 and 2019.

9.The defendant was arrested.  During the house search at the defendant’s abode, one red tee-shirt with gold logo which match the tee-shirt worn by the male person captured by the CCTVs was seized.

10.In the subsequent video-recorded interviews, the defendant admitted under caution that he was an ex-employee of the Bar, he was the person in red tee-shirt who entered the Bar at the material times.  The two other male persons captured by the CCTVs were his friends.

Mitigation

11.The defendant is aged 45.  He is a Filipino and came to Hong Kong in 1991.  He has a 25-year-old son from the first marriage.  He is now having an ongoing divorce case with his current wife.  He has 6 previous conviction records, none of which is similar to the nature of the present offence. 

12.The defendant’s father has passed away but his mother is living in Hong Kong.  The defendant is the only person providing financial support to his mother. 

13.The defendant left his employment with the Bar at around Christmas 2019 as a result of an unsubstantiated theft complaint against him.  Since then, he has been in continuous employment.  He is currently working for Gammon Construction Company.

14.In mitigation, it was submitted that prior to the commission of the offence, the defendant had drinks with his friends.  He was under the influence of alcohol which ignited his resentment against his ex-employer.  Initially, he wanted to cause inconvenience to his ex-employer by messing up the Bar. However, it turned out that a theft took place.  It was submitted that the defendant was remorseful and was willing to pay for the damages and loss suffered by his ex-employer. 

15.This Court was urged not to take the fact that two persons were involved in the burglary as an aggravating feature.  This Court was further urged to adopt the lowest possible starting point.

Sentence

16.There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 30 months’ imprisonment.

17.Although this defendant has 6 previous conviction records, those are not related to burglary.  Therefore, in sentencing, I will not consider his previous conviction records as an aggravating feature.

18.Whilst Mr. Grounds for the defence urged this Court not to regard the fact that two persons were involved in the burglary as an aggravating feature, I cannot see any basis for such suggestion.  It is well established that commission of the offence by more than 1 offender is an aggravating feature. For this feature, the starting point should be enhanced by 3 months to 33 months’ imprisonment. 

19.Mr. Grounds referred to HKSAR v Sim Ka Wing, CACC 450/2000 and asked this Court not to regard the present case as one involving breach of trust.  I accepted Mr. Grounds’ submissions and consider the commission of offence in this case did not involve breach of trust.

20.Without other aggravating features, the appropriate starting point for this offence is 33 months’ imprisonment.  Given the defendant’s guilty plea, the sentence is reduced by 1/3 to 22 months’ imprisonment.

21.Prosecution has confirmed that the total loss suffered by PW1 as a result of the burglary is in the sum of HK$6,530.  The defendant has paid the said sum into court as compensation for PW1.

22.It is well settled that restitution can amount to mitigation, particularly when coupled with a plea of guilty[1]. Given the defendant has paid the sum for compensation, I am prepared to grant him a discount of 3 months.  Therefore, the sentence is reduced to 19 months’ imprisonment.  The sum of HK$6,530 paid into court will be paid out to PW1 as compensation.