HKSAR v. Rana Bikash

DCCC 411/2019

[2019] HKDC 1602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single offence of burglary.

2.The particulars of offence allege the defendant entered a premises in Yuen Long and attempted to steal inside those premises. The offence was committed on 13th March 2019 and results from the defendant being observed breaking into what is described as an arcade in Yu King Square in Yuen Long.  The defendant was seen by a police officer who was on duty.  He used a pair of pliers to break into a wooden door at the location.  Police were then sent, conducted a sweep of the area, and found the defendant inside the premises at a staircase.  He was in possession of items that could be used for breaking and entry, such as pliers, plastic gloves and keys.

3.The police found some damage to a doorway and lock inside the premises, which showed signs of attempted entry.  That was a door and iron chain; the damage totally valued about $1,050. 

4.The defendant admits the offence. 

5.It is put forward in mitigation he was still at work and the items found in his bag were consistent with his employment as a construction worker as well as being consistent with use in burglary.

6.Defendant is a 41-year-old man of Nepalese descent but born in Hong Kong.  I am told he was educated to Form 3 in Nepal and then returned to Hong Kong and has worked as a construction site worker on and off since then, and said to be still employed when he was arrested.

7.Recently released from prison on 24th February in connection with possession of offensive weapon case.  He is single, lives on his own or with a friend, has apparently no family in Hong Kong, has a number of previous convictions.  Prosecution tell me there are a total of 22 different charges on 19 separate occasions and 11 offences of dishonesty.

8.I know it is clear the defendant’s record is that he has been to Drug Addiction Treatment Centre more than once, so he clearly in the past certainly had a drug problem.  Also, the other offences are largely petty crime such as theft from vehicles and criminal damage, going equipped for stealing, for which he has received relatively short sentences of imprisonment, up to 6 months’ imprisonment.

9.So this offence is a bit of a departure for him, an even more serious form of offending:  breaking in and committing a burglary.

10.In mitigation, I am asked to consider the defendant’s plea of guilty, which should entitle him in this case to a full one-third discount.  It is conceded the defendant has offences of dishonesty in the past, which would justify the court enhancing the sentence.  Defence say that is the only aggravating factor that exists in relation to sentence here, and as it is, on the face of it, a new departure for the defendant, the defence ask that that enhancement be kept to as low a level as is consistent with the interest of justice.

11.As far as the defendant’s personal circumstances are concerned, they are largely non-contentious, he being 40 years old and single, his parents residing in the UK and him living alone in Hong Kong.

12.My approach to sentence is as follows.

13.I have to determine a starting point for sentence.  This is a non-domestic premises burglary.  The normal sentence of imprisonment for a person of clear record, after a plea of not guilty, will be one of 30 months’ imprisonment. 

14.As far as enhancement of that sentence, it would appear there is only basis on which the sentence could be enhanced, and that is the defendant’s previous convictions,  extensive convictions for dishonesty, show that previous sentencing may well have failed to deter the defendant from this course of action and an enhanced sentence is permissible in those circumstances.

15.I will enhance the sentence by 3 months, so the starting point for sentence is actually 33 months’ imprisonment.

16.Defendant is, in my view, entitled to a full one-third discount from that, but that is the only mitigating discount that I can effect in this case.

17.That, by my calculations, would lead to a final sentence of 22 months’ imprisonment.

18.The defendant also is in a position to pay compensation for the broken lock and door of $1,050, so I will make a compensation order in respect of that.

19.So that will be the sentence of the court.