HKSAR v. Gurung Bhakta Bahadur

DCCC 888/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 888 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.On 17 February 2016, the defendant pleaded guilty to and was convicted of two charges of burglary, both preferred against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.At all material times, Promise Network Printing Limited operated some 30 workshops at various buildings in Kwun Tong Industrial Centre (“the Centre”), Nos.448-458 Kwun Tong Road, Kowloon; the defendant was a general attendant of the company responsible for collecting printouts from the workshops for lamination.  The printouts would be placed outside the workshops for collection; it was unnecessary for the defendant to enter the workshops. This burglary case concerned waste material, namely, paper and metal sheets generated at the workshops and destined for disposal to a recycle company.  

3.On the Sunday morning on 2 August 2015, the defendant showed up at one of the company’s workshops at Flat K, 3^rd floor, Phase 3 of the Centre, and opened the iron gate with a key he had earlier picked up at the corridor.  He entered the workshop and took away some waste metal and had it sold at a mobile recycle booth on the street for $78. (Charge 1)  In the early hours the next day, ie., 3 August 2015, he entered the workshop in a like manner and stole some waste paper, which he subsequently sold for $65. (Charge 2)

4.Noticing the disappearance of the waste material, a manager of the company viewed the CCTV surveillance recordings and unearthed the defendant’s crime.  The manager estimated that the company had lost waste paper and metal sheets valued at about $100 and $200, respectively, in the two offences.  A report was made to the police.  On 4 August 2015 the police arrested the defendant who admitted, under caution, to the two offences.       

Mitigation

5.The defendant was born in Nepal in April 1970 and is now 44 years of age.  He has settled in Hong Kong and has obtained an HKID card.  Educated to Primary level, he works as a general labourer, performing menial tasks.   He is married and has no children.  He has one criminal conviction record – which is spent – for gambling in a gambling establishment in 2006.  For sentencing purposes, he is treated as if he is a person of previous good character.

6.In his plea in mitigation, Mr Ian Polson appearing for the defendant submits that the offences committed by the defendant are not regular burglaries in two significant aspects: firstly, there was an absence of any act of breaking-in, and secondly, of all the valuable items that must have been put or installed inside the workshop, the defendant has chosen to steal the rubbish, so to speak, which he sold for less than $150.  Emphasizing the defendant’s previous good character, Mr Polson urges the court to consider calling for a community service order report.  Having considered Mr Polson’s submissions with care, the court finds itself unable to accede to his request.  The defendant has lived here for a number of years and is unlike a person who has just arrived and who might not be aware of the seriousness of the offence of burglary in Hong Kong.  In view of the prevalence of this offence in Hong Kong, an immediate term of imprisonment is invariably imposed even in cases of fresh offenders, even where no property has been stolen (provided always that the offender has had the intention, when entering the burgled premises, to steal).  In addition, there is multiplicity of offences in the defendant’s case which involves also a clear element of breach of trust.  (In the letter of Messrs. Lau & Ngan, Solicitors for the defendant, dated 12 January 2016, the company was described as the defendant’s “former employer”.)

Reasons for sentence

7.The guideline sentence for a burglary offence committed in non-domestic premises is one of two and a half years’ imprisonment (see R v Wong Man[1]). In SJ v Tsang Ho Yin, Anthony[2], the Court of Appeal said:

9. More recently, in a case to which Mr Zervos also referred, it was stated in the judgment given on 30 May 2001 in HKSAR v Sim Ka-wing, CACC 450/2000 (unreported) that:

“The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

10. It is plain, as Mr Zervos accepted, that the respondent had long since ceased to work at the estate for the company which was responsible for its maintenance. It is apparent that this was not a ‘breach of trust’ case in the sense referred to in R v Barrick [1985] 81 Cr.App. 78. Nevertheless, the fact remains that this was not by any means an opportunistic burglary. The respondent had kept the key to the premises, from the time his employment had been terminated in mid-2002, until 30 December 2003 which is indicative of premeditation on his part. Furthermore, he was able to use his particular knowledge as a former employee at the estate to commit the offence and it is not without interest that the respondent was equipped with a handcart to take this sizable stolen item away which is indicative of an awareness on his part of the property he was likely to find inside the premises which, we note, had no window. (emphasis supplied)

11. Realistically, Mr Coghlan for the respondent did not seek to suggest that the judge’s starting point could be supported. He accepted that there was no good reason for such a dramatic departure from the guidelines, and that the sentence would, in normal circumstances, necessarily have to be increased.

12. In our view, a sentence falling well below the recognised guidelines, as here, can only be justified where the circumstances are wholly exceptional. We do not consider that this was the situation in the present case. It was a relatively standard burglary.

8.That said, the Court of Appeal has had the occasion to examine “opportunistic burglary” in HKSAR v Cheung To Ming[3], a case in which there was insufficient evidence to support a finding that the offender had himself broken into the burgled premises at which some cup noodles were consumed.  The Court of Appeal said:

12. We are satisfied in the present case that the only safe basis for dealing with the appellant is to regard him as having been in the same position as a “sneak thief” who was able to walk into the Centre at some stage after one or more others had broken into it. On this basis, the appellant was entitled to receive a lesser sentence than would usually be given for a burglary of this type. We consider that an 18-month starting point would meet the justice of the case having regard to the most unusual circumstances in which it seems the appellant committed this burglary. As the appellant pleaded guilty, the starting point must be reduced by a third to reflect this.

9.In the present case, there was, as Mr Polson submits, a lack of any act of breaking-in.  The defendant revealed under caution that he has picked up the key at the corridor, tried it on various doors, and found it could open the subject workshop.  There is, it appears to the court, an element of opportunism leading to the commission of the subject offences. 

10.While it is unarguable that the defendant has had the intention to steal something in the workshop, it is equally beyond dispute that he has never had the intention to steal whatever valuables he happened to find there: he targeted the waste material and took nothing else. In terms of culpability, the defendant’s crime is marginally more serious than the kind of opportunistic burglary referred to in  HKSAR v Cheung To Ming[4], marginally so due to the presence of breach of trust.  That breach is, in any view, not of a serious nature and degree, given the defendant’s clearest intention not to remove valuables from the workshop.

11.In view of the wholly exceptional circumstances identified above, a starting point of 21 months’ imprisonment for each of the two charges would be sufficient to meet the justice of the case.  The defendant, who is treated as a person of previous good character, is entitled to one-third reduction in sentence for his guilty pleas.  He is accordingly sentenced to 14 months’ imprisonment for each charge.  Applying the principle of totality, it is ordered that the two sentences be served concurrently, the offences having arisen out of the same factual origin.

Conclusion

12.For the offences in the two charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of 14 months.  In addition, the defendant is ordered to compensate the company referred to in the charges in the agreed sum of $300, to be paid out of his bail money.