HKSAR v. Waththa Waduge Samantha Ranasiri

DCCC 99/2023

[2023] HKDC 1589

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 99 OF 2023

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REASONS FOR SENTENCE

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Background

1.The defendant pleaded guilty to 2 charges, being ‘burglary’ of non-domestic premises for Charges 1 to 2, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.All the offences took place in a construction site of “LYOS”, located at No. 2 Hung Yuen Road, Tin Shui Wai, New Territories (“the Site”), it is a 110,000 square foot construction site for private housing estate and still under construction.  This Site was surrounded by a 3-meter-tall fence.  There was one entrance with a metal gate and the gate would be locked after 1900 hours. Some area of the Site was covered by CCTV.

Charge 1

3.At about 1800 hours on 10 August 2022, Mr Wan (“PW1”)  checked correct the telephone room and power room of the Site.  At about 0745 hours on 11 August 2022, PW1 returned to the Site and found the password lock of telephone room was damaged.  Upon checking, some electricity wires and copper tools/fittings were found missing.  PW1 reported the case on the same day.

4.CCTV captured that at about 0114 hours on 11 August 2022, the defendant (who was wearing a black cap with “New York Yankees” logo at the front, a white surgical mask, a black T-shirt, a pair of blue jeans, a pair of white gloves as well as a pair of black sports shoes with a white logo)  held a long screwdriver (with a handle which was red and black in color)  and a backpack then entered to the telephone room and stole 7 rolls of electric wires (“S/ppty 1”).

5.At around 0203 to 0207 hours on the same day, the defendant went to the switch room and stole 14 rolls of electricity wires (“S/ppty 2”)  (S/ppty 1 and S/ppty 2 valued at HK$43,050, belonged to Ying On Kee Engineering Limited (“the VTC”).

Charge 2

6.At about 0555 hours on 29 August 2022, PW1 was alerted by his mobile phone which informed him that someone trespassed into the power room.  CCTV captured that at about 0547 hours on 29 August 2022, a culprit (who was wearing a surgical mask, a cap in white color, a jacket in dark color, a pair of jeans in dark color, a pair of gloves)  (“An Unknown Person”)  and the defendant (who was wearing a surgical mask, a cap in dark color, a T-shirt with a distinctive logo (a cartoon figure and wording of “THE LORD OF DEATH”, “JIZO COMPLETE”, “THE MASTER” (“the Distinctive Logo”)  at the back, and a pair of jeans)  entered the power room and stole 3 rolls of copper wires (“S/ppty 3”)  (valued at HK$15,000, belonged to the VTC)  from the room then left at 0549 hours.  A report was made to the Police.

Arrest of the defendant

7.Investigation revealed the identity of a suspect (later found to be the defendant). On 31 August 2022, Police visited the defendant’s residence at a stone house in Muk Liu Tau Tsuen, Yuen Long and arrested the defendant.  Under caution, the defendant remained silent.

8.Search warrant was executed.  Upon house search, some items (e.g. universal knife, screwdrivers, gloves, clothing, etc.)  were found and seized.  Amongst the seized items, the following items are observed to be wore or used by the defendant during the commission of offence as captured by the CCTV of the Site:

Charge 1

Exh 7: One black cap with “New York Yankees” logo at the front

Exh 15: One black and red screwdriver

Charge 2

Exh 3: One T-shirt in black with the Distinctive Logo

9.On 31 August 2022, a video recorded interview was conducted with the defendant. He denied committing the offences and stated inter alia that:

(a)  He claimed to be living on his own.

(b)  The seized tools were picked from refuse station.

(c)  He would use the tools and gloves when he went to refuse collection point.

(d)  Exh 3 and Exh 6 belonged to him.

(e)  He never went to the Site.

(f)  Upon asking about that the CCTV captured the culprit wearing a black T-shirt with a similar Distinctive Logo as Exh 3, he explained that he just had a similar T-shirt.

10.At the material times, the defendant entered the Site as a trespasser and stole therein.

11.At all material times, the defendant is and was a Form 8 Recognizance holder.

The defendant’s criminal records and mitigation

12.The defendant has 5 previous convictions, 4 are dishonest related offence (which was recorded in 2012, 2022 and 2023).  There is a conviction recorded in June 2022 for which the defendant received a sentence of 2 months’ imprisonment for the offence of going equipped for stealing. 

13.In mitigation, I was told that the defendant pleaded guilty at the first opportunity.  He is aged 43 and a “Form 8 recognisance holder”.  Mr Hemmings rightly pointed out that the only powerful mitigating factor is early guilty plea. 

Sentencing consideration and discussion

14.The conventional starting point for burglary of non-domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Sim Ka Wing CACC 450/2000).

15.The aggravating features in this case include the fact that the defendant is a repeated offender.  He has 4 dishonest related convictions in 2012, 2022 and 2023.  The defendant committed the present offence soon after his release from jail for sentence in June 2022.  Secondly, the value of the stolen property was substantial ($58,050)  and most, if not all of the items were not recovered. He committed 2 burglaries within a short period of time.  Thirdly, he was a “Form 8 recognisance holder”.  The cumulative effect of those aggravating features warrant enhancement of sentence.  Having considered Mr Hemmings’s submissions, which is short and concise, my view is that 6 months’ enhanced sentence should be given for each of the offence because of the aggravating features of the offences (30 + 6).  1/3 discount be given for his guilty plea and that arrived at 24 months for each of the offence.  Having further considered the principle of totality in that a further meaningful discount be given to a defendant with multiple offences, I order 8 months of Charge 1 be made consecutive to Charge 2.  The total sentence the defendant has to serve is 32 months’ imprisonment.