HKSAR v. Duong Minh an
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DCCC 148/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 148 OF 2013 -----------------------------------
---------------------------- 1.The defendant pleaded guilty to 4 charges of Burglary[1] and 1 charge of Breach of Condition of Stay[2]. Facts Charge 1 2.On coming to work on 26th October 2012, the manager of Burger King fast food restaurant located at passenger terminal building 2 of the Hong Kong International Airport discovered that 4 padlocks, 2 bundles of keys and some food (total value $270) had gone missing from the kitchen. The key and padlocks were used to secure the fridge and they had been left on the shelf in the restaurant previously. 3.Upon reviewing of closed circuit television footage, the defendant was seen to have climbed over the service counter to enter the kitchen on 25th October 2012, leaving by the same route after stealing. Charge 2 4.12 days later on 7th November, the manager of Macau Restaurant at the same passenger terminal building found that 9 bottles of wine (total value of $360) had been stolen from a display shelf in the restaurant the night before. 5.Upon reviewing of closed circuit television footage, the defendant was seen to have removed the wines from the cabinet and leaving the restaurant via the rear door. Charges 3 and 4 6.3 days later on 10th November, 2 Police officers were patrolling the food court area at the airport at around 3:50am when they saw the defendant climbing over the service counter of Famous Famiglia restaurant to enter the restaurant which was also located at the same passenger terminal as the previous 2 restaurants. In fact, Famous Famiglia and Burger King shared the same kitchen. 7.Shortly afterwards, the defendant emerged over the counter of the adjacent Burger King restaurant, carrying 5 boxes which belonged to Famous Famiglia ($50) and some food items belonging to Burger King ($145). 8.The defendant was stopped and arrested. Under caution, he admitted that he was hungry and had climbed into the kitchen of Famous Famiglia, and then stole some frozen food and was leaving through Burger King. The defendant was remorseful and apologized. 9.At later cautioned interviews, the defendant admitted that it was he who had stolen from Burger King on 25th October as he was very hungry. He found some keys and opened the fridge, took some spaghetti and hotcakes to eat and he also took away the padlock and keys which he later disposed of. 10.The defendant admitted that it was he who had entered Macau Restaurant through a door and had taken the red wines before leaving via the rear door. 11.The defendant claimed that he was in Hong Kong for transit to Japan for medical treatment but as a result of mistakes during transit, someone had taken his air-ticket and money away and the defendant had to continue to stay. Charge 5 12.The defendant arrived in Hong Kong on 7th June 2012 and was permitted to stay for 90 days. He had overstayed by about 2 months. Previous convictions 13.The defendant is of previously clear record. Mitigation 14.The defendant is 34 years old and a Danish Passport holder. It was said at first that the defendant was born in Denmark but the place of birth was stated as Vietnam in the defendant’s passport. The defendant was however educated in Denmark to High School level. We do not know how the defendant came to be in Denmark as even his representing lawyer was unable to extract that information from him. His parents reside in Denmark. The defendant has no siblings. He was a part time football coach earning around $1,000 Euros per month before arriving in Hong Kong. 15.I was told in mitigation that the defendant’s original plan was to transit to Japan to seek treatment for his wrist pain after arriving in Hong Kong on 7th June 2012. Later on he mentioned that he had coaching job in Japan as well but he was not able to give further details. Somehow, having landed in Hong Kong, the defendant strayed out of the transit area and lost his luggage together with his air-ticket, phone and some money. The defendant made a report to the Police on the same day about his loss but they were not able to help him. 16.The defendant was hungry and thirsty at the time of the commission of the burglary offences. He frankly admitted his acts in his cautioned interviews and admitted to the offences. The defendant was acting alone, no special tools were used and there was no breaking in or forced entry. The stolen property is of totally $825 only. It was submitted that the defendant committed the burglaries out of necessity. In relation to the overstaying charge, it was pointed out correctly that the length of overstaying was relatively short. 17.Given the possibility that the defendant was the victim of a crime himself, I proceeded to try to obtain more information from the defendant directly. The defendant told the court that he went to London from Europe because he would go around Europe working as a football coach. He flew direct to Hong Kong from London. After landing in Hong Kong, he did retrieve his luggage but it was stolen when he left his bag and went to the washroom. The defendant was however unable to say for sure how many pieces of luggage he had brought from London, just that it was 3 or 4 pieces. 18.The defendant said he reported the loss at Po Lam Police Station. After that, he had been sleeping on the street, including Choi Hung Estate. This was confirmed by an incident dated 10th June when the defendant was seen sitting in a park in Choi Hung Estate and Police was notified when the defendant refused to answer questions asked of him by the security guard there. Upon investigation, the Police officer took no further action but provided the phone number of the Danish Consulate General in Hong Kong and told the defendant to make a call to seek their assistance. 19.Having heard from the defendant directly, I wondered if there might be more behind the defendant’s story that would impact on the sentence to be adopted. I therefore adjourned the case for a background report on the defendant to be prepared. Unfortunately, the defendant refused to render any assistance to the interviewing probation officer, causing him to be unable to furnish such a report. 20.When the defendant appeared again in front of this court, he was clearly reluctant for anyone to try to probe into his personal history and just wanted the matter to be dealt with as soon as possible. After lengthy discussion with his counsel and the prosecution, I decided that the defendant will be sentenced based on the currents facts available to the court. 21.Fortunately, the Police was able to provide me with 3 incident reports involving the defendant after his arrival in Hong Kong on 7th June. 22.The first report shows that the defendant was telling the truth when he said he had made a report to the Police on 7th June 2012 about losing his luggage having landed in Hong Kong while awaiting transit. The only difference in his story in court is that he said he was going to Japan instead of Taiwan. 23.That report was made at Tseun Kwan O Police station. The facts as stated in the case details report are that the defendant had lost his luggage due to his carelessness and he had no idea how and where he lost it. No further action was taken by the Police in relation to this incident. 24.The second report shows that a few days later on 10th June, the defendant was seen sitting in a park in Choi Hung Estate in Kowloon. Police was summoned and the defendant said something like he wanted to find his father but he did not know where he lived. The defendant refused Police assistance. The Police officer very sensibly provided the telephone number of the Denmark Consulate in Hong Kong to the defendant. No further action was taken. 25.The third case details report shows that almost 2 months later, on 5th August, the defendant made a ‘lost report’ to a staff member of the Chanel Shop situated at L5, terminal 2 of the Hong Kong International Airport, who then reported the matter to the Police. Upon investigation the Police found out about the defendant’s earlier report made to the Police. The staff member very helpfully tried to contact the Danish Consulate but since it was a Sunday there was no reply. The staff member said that he will follow up with the case and no Police help was needed. No further action was taken and case marked as closed. For what it is worth, a search on the internet suggests that the Royal Danish Consulate in Hong Kong had been closed for good since 1st August 2012. Sentence 26.The maximum sentence for burglary is that of 14 years’ imprisonment. The guideline sentence for burglary of a non-domestic premises is that of 2 and a half year’s imprisonment. 27.The maximum sentence for charge 5 is that of a level 5 fine and imprisonment for 2 years. 28.The defendant stole out of hunger. He committed the offences within a short time frame but the commission of the offences are in line with his story of being stranded in Hong Kong and without means to get food. Charges 3 and 4 were practically committed at the same time. Based on his mitigation, the defendant stole because he was stuck in Hong Kong and was forced to overstay. 29.I find that it is very difficult to understand how a football coach who works in Denmark and Europe would end up stealing in an airport in Hong Kong, and this was supposedly when he was en route to Japan to have his injured hand treated. Furthermore, the defendant was very vague in the details about his movement and the reason why he was stranded in Hong Kong. 30.There are many unanswered questions in the case but the fact remains that the defendant is a Danish passport holder who flew to Hong Kong on 7th June and seemed to have lost his luggage. He is unable to provide a phone number or an address and so no one had been able to assist him in trying to contact his family. 31.Having seen and heard the defendant in court, I find that there is some incoherence in his speech and am genuinely concerned about his mental well-being. Nevertheless, given the inability on the defendant’s part to provide further information and the unfortunate coincidence of the closing down of the Danish Consulate in Hong Kong, there is nothing else that the court can do apart from arranging for the eventual repatriation of the defendant to Denmark. 32.Bearing in mind the rather unusual circumstances of this case, I find that there is ground to depart from the guideline sentence, if for humanitarian reason and nothing else. I find that a proper starting point for each of the burglary charges is that of 9 months’ imprisonment, and that for the overstaying charge a sentence of 3 months’ imprisonment. 33.I will grant the defendant the full one third discount for all the charges in recognition of his guilty plea and sentence him to 6 months’ imprisonment on each of the 4 burglary charges and 2 months’ imprisonment on the overstaying charge. Totality 34.Given the strange and unfortunate circumstances of the defendant, I will order that the sentences in all 5 charges to be served concurrently. The defendant is therefore sentenced to a total of 6 months’ imprisonment for all 5 charges. 35.Given the fact that the defendant had been in remand for some 6 months, I anticipate the defendant will be released from jail shortly, and I order that the defendant be repatriated back to Denmark as soon as is practicable after his release.
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