HKSAR v. Limbu Manahang (also known as Limbu Manamang)

DCCC 911/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 911 OF 2015

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REASONS FOR SENTENCE

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1.The defendant, Mr Limbu Manahang, also known as Limbu Manamang, pleaded guilty before me to one count of burglary.

2.The facts admitted by the defendant reveal that at around 6:50 am on 13 September 2015, a resident of Block 5, Prosperous Garden, No 3 Public Square Street, Yau Ma Tei, Kowloon, Hong Kong found that the defendant acted suspiciously at the patio of the building.  The resident immediately informed the security guard, Mr Szeto. 

3.Mr Szeto then found the defendant being trapped in the patio.  He unlocked the door to the patio and conducted an inquiry on the defendant.  The defendant claimed that he was there to help his friend who lived on the 3rd floor to repair water pipes but he was trapped thereat.  Mr Szeto then inquired the residents who lived on the 3rd floor. None of the residents indicated that they had asked anyone to repair their water pipes.  Mr Szeto then questioned the defendant again who failed to give an answer.  Mr Szeto reported the case to the police. 

4.Shortly afterwards, the police arrived at the scene and conducted a search on the defendant.  A 30 cm long metal pole and one metre long plastic pipe were found on the defendant.

5.No prize mark could be found in all the premises of the building and no money was found on the defendant upon his arrest.

6.During the subsequent cautioned interview, the defendant stated, inter alia, that:-

(a) He wanted to steal from the flats because he had no money to buy food;

(b) He entered the building via the main gate at around 6 am. The main gate was not locked at that time. He went to the 16th floor. He pressed the door bells of several flats thereat to see which flat was unoccupied;

(c) He then took the lift to 28th floor and walked to the rooftop. He climbed down along the water pipes to look for flats which he could enter. He later reached the patio on the 2nd floor and was trapped thereat;

(d) He had not broken into any flats and did not steal anything; and

(e) He picked up the metal pole and the plastic pipe from a garbage chamber.

7.CCTV cameras nearby captured that the defendant entered the building via the main gate at around 6.15 am.  He took the lift and went to the 16th floor.  After that, the defendant took the lift and went to the 28th floor and then headed to the rooftop.

8.At around the same time, the residents of Flat 1609 and 1607 confirmed that someone pressed their doorbells.  They opened their doors and saw a male acting suspiciously in the corridor, pressing doorbells and banging the doors of other flats.

9.The defendant has a total of six previous convictions.  He was convicted once for theft in 2015.

10.The defendant is now 35 years old, he was born in Hong Kong.  He was unemployed at the time of his arrest. 

11.Mr Middleton in mitigation submits that the only mitigating factor in this case is the defendant’s plea of guilty.

12.The defendant is a Nepalese born in Hong Kong.  He is still single.  He spent his formative years in Nepal but he returned to Hong Kong in 2003.  His parents are in the UK.  The defendant has an elder sister in Hong Kong.  He was unemployed at the time of his arrest and he had no fixed abode.  He lived with his friend in Jordan at the material times.

13.Mr Middleton submits that the defendant made a full admission upon arrest.  He told the police that he wanted to steal from the flats because he had no money to buy food.  Mr Middleton submits that no flat was entered into by the defendant and no loss and damage was suffered, hence the present case is a victimless crime.  In fact, the defendant co-operated with the security guard when he was intercepted and he waited for the arrival of the police. 

14.Though the defendant has one previous conviction for theft, he has no previous conviction for burglary.  Mr Middleton describes the burglary as an opportunistic one as there was no sophistication and no planning by the defendant.  Mr Middleton accepts that the defendant committed the burglary while he was on bail for his possession of offensive weapons case.

15.Mr Middleton accepts that the usual starting point for burglaries of domestic premises is one of 3 years’ imprisonment.  He draws my attention to HKSAR v Suen Chi Wai [2015] HKCA 439.  In Suen’s case, the applicant stole from a common part of a residential building.  Mr Middleton submits that the applicant did not break into any premises of the residential building but he accepts that the defendant intended to look for a flat to burgle in the present case. 

16.Mr Middleton also draws my attention to a District Court sentencing matter, HKSAR v Lau Fei Yuen, DCCC 794/2011.  In Lau, further discount was given to the defendant for his co-operation and assistance to the police, leading to the recovery of the stolen properties.  Mr Middleton reiterates that the present case is a victimless crime. 

17.In sentencing the defendant, I have borne in mind the facts of this case.  I have also borne in mind all the matters urged on the defendant’s behalf by Mr Middleton.  As realistically accepted by Mr Middleton, this case calls for a starting point of 3 years’ imprisonment.

18.The defendant is entitled to one-third reduction for his guilty plea and his co-operation with the police. I do not think the co-operation on the part of the defendant and his admissions merit a discount on top of the usual one-third reduction.

19.The defendant was found as a trespasser in the building at that time.  His presence there naturally called for an explanation.  Initially, the defendant sought to explain that he was there to help a friend to repair their water pipes.  He only admitted the offence after he realised that his lies did not hold water.

20.To some extent, it is true that the present case was a victimless crime as the defendant was unable to break into any of the premises, but the defendant had with him a metal pole.  He sought opportunities on the 16th floor, he then took the lift to the 28th floor and walked to the rooftop.  He climbed down along the water pipes to look for flats which he could enter.  In essence, I do not regard the burglary as an opportunistic one. 

21.For the reasons given, I sentence the defendant to 2 years’ imprisonment.