HKSAR v. Tabora Raul F Jr

DCCC 706/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 706 OF 2014

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REASONS FOR SENTENCE

1.You have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.In summary in the early hours of the 26 June this year a residential building in Hung Hom which was being refurbished was burgled when various construction tools to the value of $5,800 were stolen from a toolbox which had been secured by a metal chain and left in the rear staircase.

3.Two days later the police intercepted a male Ng Wan Ming who was found in possession of some of the tools stolen in the burglary.  While the police were making enquiries of Ng he pointed you out saying you had asked him to sell the tools.  The police arrested you and under caution you admitted stealing the tools.

4.In passing sentence I have carefully considered everything said on your behalf by Mr Morley.  I take into account that whilst you have previous convictions for dishonesty you have none for burglary.

5.Although the building was being refurbished I am told the premises were largely occupied at the time of the burglary.  The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  

6.Mr Morley citing HKSAR v Cheng To Ming [2006] 2 HKLRD 260 submits that this was an opportune theft and that your position was akin to that of a sneak thief.  The facts of that case are entirely different to the present case.  I do not regard this offence in the same light as where someone passes by an open door or vacant premises where food or items of little value are stolen (also see HKSAR v Chau Man Ying CACC 439/2011).  Whilst on one hand this may to a degree be called an opportune theft on the other hand you had to break open the toolbox from which you stole construction tools to the value of $5,800 (one of which has not been recovered).

7.I am however satisfied that a distinction should be drawn between burglary of a home within a residential building and burglary from the common areas of the building. In all the circumstances I am satisfied a starting point of 2 years and 6 months imprisonment is appropriate.

Aggravating features

8.You are presently serving a sentence of 4 months imposed in ESCC 2699/2014 for drug related offences.  This appears in a memo to the court from the Correctional Services and not on your criminal record which is almost three months out of date.  I repeat what I said in court the police must update criminal records before coming to court. 

9.Mr Morley has informed the court you were sentenced on the 12 August and according to the memo you are due for discharge on the 18 October.  Mr Morley has also very properly told the court you committed the drug offence in May and were placed on police bail during which time you committed the burglary.  In the circumstances, the drug offences being entirely separate and distinct, I need not call for the case papers to read.

10.The commission of offences on bail is an aggravating feature of sentence.  In the circumstances I increase the starting point by 3 months to 2 years and 9 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 1 year and 10 months imprisonment.  Mr Morley submits you were fully cooperative with the police admitting the offence.  The fact a defendant freely confesses at an early stage to the offence and subsequently pleads guilty is to be subsumed within the one-third discount (see HKSAR v Pakit Joni CACC 10/2013).

11.You are convicted and sentenced to 1 year and 10 months imprisonment.  The burglary being separate and distinct from the drug offences for which you are now serving sentence I order the sentence to be served consecutive to that sentence.