HKSAR v. Gurung Lok Bahadur

DCCC 331/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 331 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of burglary, That was committed on 15 February, at residential premises in Yuen Long.

2.The facts have been agreed, they show that at about 8.30 on the evening of 15 February, a married couple were returning to their home in what was a subdivided flat in Yuen Long.  The main door of the flat had been opened, and the door knob had been damaged.  And then they saw the defendant walking out of the flat.  They, in fact, tried to subdue the defendant, there was a struggle.  A neighbour had rendered assistance, and the defendant was subdued. 

3.Some plastic cards were found on the defendant, together with money, total $170 of classical bank notes were found in the defendant’s bag. 

4.The defendant immediately admitted he’d used the plastic cards to open the doors to the flat.  He said, at that time, he hadn’t stolen anything.

5.One of the victims confirmed that the $170 found on the defendant belonged to her. 

6.The defendant admits that he entered the flat in question as a trespasser, and stole the cash, $170, from inside it. 

7.As far as the defendant’s background is concerned, we know that he is aged now 39 years old.  He was, in fact, born in Hong Kong, according to the antecedents, but was educated in Nepal from kindergarten through to secondary 2.  His general employment had been as a construction worker, and he does have a child, who is 20 months.

8.The defendant has a number of previous convictions, a total of 14 previous appearances in court, the defendant has committed numerous times for burglary, since 1995, also offences such as handling stolen goods and going equipped for stealing.  Perhaps of relevance today is that both in 2007 and 2011, for convictions of burglary, the defendant was sentenced to two years’ imprisonment, and there are also three further convictions of burglary.  The defendant was most recently sentenced for going equipped for stealing on 24 June 2016, receiving a sentence of 12 months’ imprisonment.

9.His record shows that he has been sentenced to a Drug Addiction Treatment Centre back in 1995, and that prefigures another part of his background, is that he appears to be a long-term addict to various substances. 

10.I obtained psychiatric reports on the defendant, and because it did appear his addiction has caused him psychiatric problems, and also a background report.  It appears from that the defendant does know the address of his previous cohabitant and their child.  His family itself has migrated to the United Kingdom, leaving him behind.  It says the defendant resorted to multiple thievery offences, and also to drugs to relieve the stress of his marriage, divorce and unemployment. 

11.The Social Welfare Department in the background report the officer does not appear to feel that any of the defendant’s sentencing has done him any good, or done anything to improve him. 

12.As far as his psychiatric report is concerned, the conclusion of that is the defendant has a history of mental and behavioural disorder, due to poly-substance use, and dependent syndrome.  His mental condition is observed to be stable in custody, with abstinence from illicit drugs, so it would appear that while the defendant is away from drugs, his mental condition is stable.  It is considered that no in patient psychiatric management is warranted at the current juncture. 

13.The question is, what approach to be taken to sentencing for the defendant.  The defendant has pleaded guilty to one offence of burglary.  This is a burglary of a residential premises.  The burglary itself shows small damage to the doorknob, valued at a repair cost of $500, otherwise, the burglary is an opportunistic walk-in burglary of a sub-divided premises. 

14.However, the starting point for sentence for a residential premises burglary for a person of clear record, convicted after trial, is 3 years’ imprisonment.  That started with a sentence can be subject to various aggravating or mitigating factors.  The aggravating factor in this case, the clear aggravating factor, would be the defendant’s previous convictions for burglary, over the years 1995 to 2011. 

15.The defendant had been convicted a number of times.  Those previous convictions clearly have failed to deter the defendant from committing burglary on this occasion.  That is an aggravating factor, because it suggests the failure of previous sentencing to deter the defendant for this form of offending. 

16.I do take into account there is a gap of some six years.  Nevertheless, it does appear the defendant will turn his hand to burglary if he needs money for drugs. 

17.As far as mitigating factors are concerned, a clear mitigating factor is the defendant’s plea of guilty and the remorse shown.  He is, of course, entitled to a one-third deduction for that. 

18.I see no reason to depart from the initial starting point of 3 years’ imprisonment, that’s 36 months’ imprisonment, for this defendant.  As far as the aggravating factors of the defendant’s previous convictions for this offence and the failed deterrent to act to stop him on this occasion, I will allow a further 6 months’ imprisonment for that factor. That leads now to a starting point of 42 months’ imprisonment.  The defendant is entitled to one-third deduction from that figure, that leads to a final sentence of 28 months’ imprisonment for this offence.