HKSAR v. Gurung Iman Sing

DCCC 420/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 420 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Summary of facts

3.The victim grocery store was located in a L-shaped premises.  Business of the store was conducted mainly at the front part of the premises whilst there was a sitting room, a kitchen and a washroom at the rear area.

4.At around 5:50 am on 25 March 2017, the defendant entered the victim grocery store via the washroom instead of from the front entrance.  The defendant tried to open the metal door leading to the sitting room area but in vain.  At around 6:32 am, the defendant damaged the bottom part of the metal door and crawled into the sitting room area and then entered the front part of the store, ransacked and stole around $1,000 from the till machine and stole a bag contained $15,000 placed nearby.  The defendant then left the store via the kitchen.  The act of the defendant was captured by the CCTV installed inside the store.

5.The till machine and the metal door mentioned above was prized open and damaged by the defendant.  A ventilation fan between the washroom and the water meter room of the store had been removed from its original position by the defendant.

6.The defendant was arrested on 27 March 2017. Under caution at the scene, the defendant admitted that he had stolen some money from the store and that he had already spent the money.  The defendant was never authorized to enter the store at all material times.

Mitigation

7.The defendant aged 36, born in Hong Kong, has completed secondary education.  He is married with a son of 10 months old.  He used to be a labourer earning $15,000 per month but he was unemployed at time he committed the offence.  He committed the offence because he was out of job.

8.The defendant has 7 conviction records, of which 3 was theft and 3 was burglary and he was sentenced to DATC for a further case of burglary in 2004 of which no conviction recorded.  The defendant last released from prison in December 2015.  The defendant claimed he is not a drug addict now.

9.The defendant has pleaded guilty, he felt very sorry and regretted for his wrong and would not re-offended again.  The defence urged the court for leniency.

Sentence

10.Both parties referred me to an authority concerning Burglary respectively.  The Court of Appeal stated in HKSAR v Sim Ka Wing CACC 450/2000that the conventional starting-point of 2.5 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 increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.

11.Mr Dosani representing the defendant submitted the present is one of the conventional burglary and urged me to adopt the conventional starting point of 2.5 years.  Mr Dosani referred me to the case of Wong Man CACC 372/1992 where the applicant with clear record together with two accomplices having cut the padlock at the main entrance to the store, used duplicated keys to deactivate the external burglar alarm, entered the premises and stole therein.  The Court of Appeal was with the view that the sophisticated nature of the offence was an aggravating factor, however, confirmed the starting point of 2.5 years which has taken into account of the clear record of the applicant.  

12.The defendant is a professional criminal, he has 6 convictions involved dishonesty, 3 of which are burglaries and he was found guilty for another burglary in 2004 of which no conviction was recorded.  The defendant was last released from prison for burglary in December 2015.  Further the defendant must have a good knowledge of the vicinity and layout of the premises, he has removed a ventilation fan of the premises, prised and damaged a metal door to gain access to the sitting room area and then the front part of the store, where the till machine and the bag of money were placed.  In my view the degree of planning and premeditation in this case was more than normal and justified an increase in the starting point.

13.I consider the appropriate starting point in the present case should be 33 months’ imprisonment.  The defendant pleaded guilty at the earliest opportunity, he is entitled to the full 1/3 discount.  I do not consider there to be any mitigating factors that call for further deduction.

Order

14.The defendant is sentenced to 22 months’ imprisonment.