HKSAR v. Gurung Vinod Kumar

DCCC 1001/2018

[2019] HKDC 689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1001 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to two charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1 & 2) and one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 3).

2.Full particulars of the offences are set out in the facts admitted by the defendant on 16 April 2019.  In summary on 9 June and 17 June 2018 the defendant stole items of underwear from outside two different homes in Ma Tin Tsuen, Kung Um Road in Yuen Long (charges 1 & 2).

3.Also on 17 June 2018 at about 5:16 a.m. the defendant was found inside the covered garden of another home in Ma Tin Tsuen[2]. The defendant immediately ran away.  The house owner found some old clothes in the covered garden had been searched through but nothing was missing.  The owner also found an iPhone which did not belong to him or his family (charge 3).  

4.The defendant was arrested on 11 August 2018.  In a record of interview and a subsequent video recorded interview the defendant admitted, inter alia, that after watching pornography he had a sexual impulse and stole a bra when he passed by the village houses in Ma Tin Tsuen (charge 1); he was riding his bicycle when he stole a pair of underpants (charge 2) and at about 5 a.m. one morning he entered a village house’s area and looked through the washing machine area because he wanted some water to drink.  Later the defendant realised he had lost his iPhone (charge 3). 

Mitigation

5.In passing sentence, I have carefully considered the oral and written submissions of Mr Morley, including that the defendant is married and has a son aged 6, who lives in Nepal. 

6.I take into account that the defendant has a clear record.

Starting point

7.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

8.Mr Morley submits that this is not the usual burglary motivated by greed and that the offence was opportunistic with a lower risk of confrontation whereby the court can depart from the guideline sentence[3].

9.In Attorney General v Lo Ching Fai the Court of Appeal held that exceptional circumstances are required before a defendant can avoid an immediate custodial sentence for burglary of domestic premises and that in the absence of special circumstances pertaining to the offence or the offender a suspended sentence is wrong in principle even where the offender has a clear record[4].  

10.Mr Morley has referred the court to HKSAR v Tsang Chun Yin where the Court of Appeal discussed exceptional circumstances[5] and to various sentences imposed in burglary cases, mostly from the District Court, including sentences of probation, community service, suspended sentences and immediate imprisonment[6].   

Individual justice

11.In determining whether there are exceptional circumstances I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[7] and HKSAR v Yeung Kwun Kuen[8], cases concerning obtaining money by deception and theft.  

12.In Leung Pui Shan the appellant, aged 19, had not set out to deceive purely for personal gain, the offences being committed in the midst of emotional confusion.  In Yeung Kwun Kuen, the appellant, aged 21, who had been suffering from a long-term mental health problem committed the offences close upon the heels of a traumatic event, namely the death of his grandmother. 

Reports

13.In view of the nature of the thefts and the burglary involving stealing underwear, I called for a psychological report and a probation officer’s report before passing sentence.

14.Both reports detail conflicts between the defendant and his wife and how he has resorted to indulging in playing video games, browsing pornographic websites and occasionally taking marijuana to cope with his stress and negative emotions[9].

15.The defendant says he wishes to turn anew and stresses that he has stopped browsing pornographic websites; has joined a rehabilitation programme to quit using marijuana and attends church every week and practices meditation to enhance his mood coping[10].

16.The defendant’s wife has noticed a positive change in the defendant’s behaviour since his arrest and is fully supportive of his rehabilitation.  This positive change has also been noticed by the defendant’s peer counsellor from the Memorial Methodist Social Service[11].

17.I am also told by Mr Morley that Miss Yim from Operation Dawn has attended court today to show her support for the defendant.  Miss Yim informs Mr Morley that the defendant has been known to Operation Dawn since 2014 and that since his arrest he appears more committed participating in both the programmes run by Operation Dawn and voluntary work[12].

18.The clinical psychologist concludes that the positive behavioural change reflected that the defendant was motivated to turn anew.  The clinical psychologist advises that the defendant receive continual help to abstain from drugs and recommends psychological intervention to enhance his self-awareness, mood coping and problem solving skills[13].

19.In view of the defendant’s remorseful attitude, strong family support and concrete rehabilitation plan to tackle his drug problem and manage his sex behaviour, the probation officer is of the view that it is worth giving the defendant a chance to receive statutory supervision and recommends 15 months’ probation with special conditions to address the defendant’s drug and sexual behaviour[14]. 

20.Although the defendant is not a young offender he does have a clear record.  I accept this was not the usual burglary of domestic premises and that the defendant did not enter the main house, only the covered garden annexed to the house.  I also note that after his arrest on 11 August last year the defendant was released on bail after spending 25 days in custody. 

21.Taking into account the defendant’s personal circumstances and the circumstances in which he came to commit the offences, I am satisfied this is an exceptional case whereby I can depart from the guidelines.   

22.I am satisfied that having regard to the nature of the offences and the character of the defendant it is expedient to make a probation order.  I will therefore first explain a probation order to the defendant as required by section 3(4) of the Probation of Offenders Ordinance[15].

23.Having explained a probation order to the defendant and the defendant having consented to the making of a probation order, the defendant is convicted and sentenced to 15 months’ probation concurrent on each charge.