HKSAR v. Gurung Iman Sing

DCCC 447/2020

[2020] HKDC 942

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 447 OF 2020

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to 8 counts of burglary which took place in shop premises between 12 August 2019 and 2 January 2020.

Facts for Charge 1

2.The offence location is “Season Plus”, a restaurant situated at Shop Nos. A-E, Ground Floor, No. 52 Hillwood Road, Tsim Sha Tsui, Kowloon, in Hong Kong (“Restaurant 1”). Restaurant 1 is open daily from 3:00 p.m. to midnight. CCTV was installed at Restaurant 1.

3.At around 10:05 p.m. on 11 August 2019, Restaurant 1 was closed early due to public events in the vicinity and Mr. WONG Chi-hun (“PW1”), the person in charge of Restaurant 1, locked the doors to Restaurant 1 before leaving.

4.At around 10:35 a.m. on the following day, PW1 received a call from his staff informing him that the glass folding door adjacent to the front door of Restaurant 1 had been opened. When he returned to Restaurant 1 at around 12:15 p.m. on the same day, he discovered that the glass folding door, originally secured by a lock, had been opened and the cashier machine (valued at HK$1,800) containing cash of HK$7,000 originally placed on the cashier counter and three staff shirts (valued at HK$200) placed inside the staff’s locker, had gone missing. Case was reported.

5.CCTV of Restaurant 1 captured the Defendant lingering outside Restaurant 1 at around 6:00 a.m. on 12 August 2019. The Defendant kneeled down in front of the door and pulled at the door. At around 6:12 a.m., the Defendant pulled at the folding door and entered Restaurant 1. He walked around in Restaurant 1 and ransacked therein. The Defendant then wrapped a piece of cloth around an object resembling a cashier machine. About 8 minutes later, the Defendant left Restaurant 1 while holding the object with his right hand.

6.Three fingerprints were lifted from the outside of the folding door at the scene, one belonged to the Defendant and the other two bore insufficient characteristics for identification.

Facts for Charge 2

7.The offence location is “AT LUX”, a bar situated at Ground Floor and 1^st Floor, Nos. 19-23 Hart Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong (“Bar 1”). Bar 1 is open from 5:30 p.m. to 4 a.m. (the opening hour may be extended to 6 a.m. upon request by customers). Bar 1 has a front door and a rear door. Mr. PANG Chun-man (“PW2”) is the owner of Bar 1. CCTV was installed at Bar 1.

8.At around 5:30 a.m. on 22 August 2019, Mr. IP Ho-chung (“PW3”), manager of Bar 1, closed Bar 1 and locked the door of Bar 1 before leaving. When he returned to Bar 1 at around 5:30 p.m. on the same day, he discovered that the money tray in the cashier machine and the adjacent tips box had gone missing from the 1^st floor of Bar 1. PW2 returned to Bar 1 at around 6 p.m. and confirmed that the cashier machine and the tips box contained cash of HK$23,000 in total. Case was reported.

9.CCTV of Bar 1 captured the Defendant walking towards the front door of Bar 1 at around 4:54 a.m. on 22 August 2019 and entered Bar 1 about 2 minutes later. The Defendant moved one of the sofa at the corner, hid behind the sofa and disappeared from the CCTV footage. At around 5:01 a.m., staff of Bar 1 turned off the lights, locked the front door and left Bar 1. At around 5:22 a.m., the Defendant climbed out from behind the sofa, then walked into a room inside Bar 1 and when he emerged from the room at around 5:23 a.m., his head was covered by a piece of clothing. The Defendant went up the stairs to the 1^st Floor and lingered in front of bar area, where the cashier machine was placed. The Defendant took a box next to the cashier machine from the counter and tampered with the cashier machine. The Defendant then walked down the stairs holding a black plastic bag. At around 5:39 a.m., the Defendant emerged from the rear door of Bar 1, climbed up some pillars and disappeared from the footage at around 5:42 a.m.

Facts for Charge 3

10.The offence location is “Kuromon Aquatic”, a restaurant situated at Shop Nos. 3-4, No. 8 Minden Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong (“Restaurant 2”). Restaurant 2 is open daily from 11 a.m. to 2:30 p.m. and from 6:00 p.m. to midnight. Restaurant 2 has a front door and a rear door, there is another wooden door outside the rear door, and all of them are secured with a lock. CCTV was installed at Restaurant 2.

11.At around 00:30 a.m. on 19 September 2019, Ms ZHOU Xiaojuan (“PW4”), a waitress of Restaurant 2, checked that there was cash of HK$1,688 inside the cashier machine and locked all the doors before leaving. When she returned to Restaurant 2 at around 11 a.m. on the same day, she discovered that there were signs of ransacking and the cashier machine (valued at HK$850) had gone missing. One cash box (valued at HK$200) containing cash of about HK$1,400 and two mobile phones (valued at HK$1,000) were also missing. She discovered that the rear door of Restaurant 2 was unlocked and the wooden door had been prized open. Case was reported.

12.Apart from the rear door and wooden door, two computer keyboards and a printer in Restaurant 2 were also found to be damaged. The total cost of repairing the damaged property is around HK$5,800.

CCTV in Restaurant 2 captured the Defendant entering Restaurant 2 from the rear door at around 5:10 a.m. on 19 September 2019. The Defendant walked to the cashier counter and ransacked therein.

13.One fingerprint was lifted from the drawer of the cashier counter at the scene and it belonged to the Defendant.

Facts for Charge 4

14.The offence location is “OF Hair”, a hair salon situated at 1^st Floor, No. 1 Humphreys Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong (“Salon”). CCTV was installed at the Salon.

15.At around 8:00 p.m. on 17 November 2019, Mr. NG Ka-ho (“PW5”), a hairdresser of the Salon, locked the wooden door, the only entrance of the Salon, before leaving. At around noon on 19 November 2019, PW5 returned to the Salon and discovered that the glass panel on the wooden door of the Salon had been broken and there were signs of ransacking in the Salon. Cash of HK$2,000 originally placed in a drawer of the cashier counter was found missing. Case was reported but PW5 declined the lifting of fingerprints at the scene.

16.CCTV facing the cashier counter in the Salon captured the Defendant walking into the cashier counter and ransacking therein at around 4:03 a.m. on 19 November 2019. The Defendant was seen prizing a locked drawer under the cashier counter with a tool.

Facts for Charge 5

17.The offence location is “Bagels Alley”, a restaurant situated at Shop No. A1, Ground Floor, Haleson Building, No. 1 Jubilee Street, Central, in Hong Kong (“Restaurant 3”). Restaurant 3 is open daily from 8 a.m. to 6 p.m. Restaurant 3 has one front door and one rear door.

18.At around 8:30 p.m. on 2 December 2019, Mr. CHAN Chun-sing (“PW6”), the person in charge of Restaurant 3, locked both the front door and the rear door of Restaurant 3 before leaving. When he returned to Restaurant 3 at around 6:30 a.m. on the following day, he discovered that the glass panel on the rear door had been broken and the rear door was unlocked. There were signs of ransacking in Restaurant 3 and the cashier machine had been prized open. Cash of HK$300 had gone missing from the cashier machine and one mobile phone (valued at HK$4,000) originally placed on the kitchen counter had gone missing. Case was reported.

19.One empty CARLSBERG can, which did not belong to Restaurant 3, was found on a table near the rear door at the scene, two fingerprints were lifted from the can and they belonged to the Defendant.

Facts for Charge 6

20.The offence location is “CASTRO’S CLUB”, a bar situated at 1^st Floor, No. 16 Ashley Road, Tsim Sha Tsui, Kowloon, in Hong Kong (“Bar 2”). Bar 2 is open from noon to 3 a.m. on Monday to Friday and from 2 p.m. to 3 a.m. on Saturday and Sunday.

21.At around 3:00 a.m. on 8 December 2019, Ms SMITH YIP Lai-wan Larina (“PW7”), manager of Bar 2, locked the only door to Bar 2 before leaving.

22.At around 1:00 p.m. on the following day, Ms GURUNG Sandhya (“PW8”), a bartender of Bar 2, returned to Bar 2 and discovered that there were prize marks on the wooden door. PW8 used her key to open the door and discovered that the cashier machine had gone missing from Bar 2. PW7 returned to Bar 2 and confirmed that the following items were missing:-

(a)  One cashier machine (valued at HK$2,000) containing cash of HK$339;

(b)  One SAMSUNG tablet computer (valued at HK$2,500);

(c)  One FUJIFILM instant camera (valued at HK$1,000);

(d)  One cash box (valued at HK$40) containing cash of HK$700; and

(e)  One cordless telephone (valued at HK200).

23.CCTV of the building at the staircase leading to Bar 2 captured the Defendant walking up the stairs at around 6:44 a.m. on 8 December 2019. The Defendant lingered at the staircase at around 6:47 a.m. and walked up and down the stairs for a few times until 7:11 a.m. At around 7:49 a.m., the Defendant walked up the stairs again, carrying a black recycle bag and another black bag. The Defendant sat on the stairs and walked up and down the stairs for a few times before walking up the stairs at around 8:13 a.m. Around 4 minutes later, the Defendant went down the stairs carrying the black recycle bag and a large blue bag.

24.One crowbar covered with rust was found at the staircase between the 1^st and 2^nd floor at the scene.

Facts for Charge 7

25.The offence location is “namo”, a restaurant situated at Shop No. G18, Ground Floor, Empire Centre, No. 68 Mody Road, Tsim Sha Tsui, Kowloon, in Hong Kong (“Restaurant 4”). Restaurant 4 is open daily from noon to 11:00 p.m. CCTV was installed at Restaurant 4.

26.At around 3:00 a.m. on 25 December 2019, Ms. KARKI Sonam (“PW9”), manager of Restaurant 4, closed Restaurant 4 before leaving. At around 6:52 a.m. on the same day, PW9 received a call from the security office that a glass folding door of Restaurant 4 had been broken. When she returned to Restaurant 4 at around 7:00 a.m., she discovered that one of the glass folding doors of Restaurant 4 had been broken. Case was reported.

27.Mr. PAU Wing-sang (“PW10”), another manager of Restaurant 4, confirmed that the following items were missing:-

(a)  One cashier machine (valued at HK$500) containing cash of HK$15,000;

(b)  Four bottles of whiskey (valued at HK$4,000);

(c)  Three bottles of white wine (valued at HK$1,200); and

(d)  One iPad (valued at HK$1,500).

28.The cost of repairing the glass folding door was around HK$5,000.

29.CCTV of Restaurant 4 captured the Defendant walking over and sitting on a chair placed outside Restaurant 4 at around 6:30 a.m. on 25 December 2019. The Defendant was holding a brick with his right hand and he hit the glass folding door with the brick for about 1.5 minutes at around 6:31 a.m., stopping and looking around occasionally. He walked away from Restaurant 4 briefly for a minute before crawling into Restaurant 4 through the opening at around 6:33 a.m. The Defendant walked into the bar area of Restaurant 4 and ransacked therein. He then placed a black rectangular box resembling a cashier machine and two glass bottles on a chair outside Restaurant 4 and crawled back out through the opening at around 6:36 a.m. He then put the above items into a suitcase at around 6:38 a.m.

30.One crowbar and one brick were found at the scene.

Facts for Charge 8

31.The offence location is “Marco’s Oyster Bar & Grill”, a restaurant situated at 1^st Floor, Travelodge Kowloon, No. 23 Saigon Street, Yau Ma Tei, Kowloon, in Hong Kong (“Restaurant 5”). Restaurant 5 is open daily from 11 a.m. to 11 p.m. CCTV was installed at Restaurant 5. At around 1:00 a.m. on 2 January 2020, Mr. WONG Chi-wai (“PW11”), owner of Restaurant 5, placed cash of HK$20,000 into the drawer of the cashier counter and locked the drawer. Only PW11 had the key to the drawer. PW11 closed the door of Restaurant 5 but he forgot whether he had locked the window in the kitchen.

32.At around 10:45 a.m. on the same day, PW11 returned to Restaurant 5 and discovered there were prize marks at the drawer of the cashier counter and cash of HK$20,000 and several mobile phones had gone missing. Case was reported but PW11 declined the lifting of fingerprints at the scene. A bent knife was found in a basket next to the cashier counter.

33.PW11 subsequently confirmed that the following items were missing from Restaurant 5:-

(a)  Cash of HK$20,000;

(b)  One XIAOMI mobile phone (valued at HK$2,000);

(c)  One SAMSUNG mobile phone (valued at HK$6,000);

(d)  Two iPhones (valued at HK$16,000);

(e)  One OCTOPUS watch (valued at HK$1,500);

(f)  One bunch of keys (valued at HK$100);

(g)  One pink iPhone (valued at HK$6,000) (Recovered); and

(h)  One AUDEMARS PIGUET watch (valued at HK$112,200), belonging to PW11’s wife Ms LO Shuk-yee (“PW12”) (Recovered).

Investigation leading to Arrest of Defendant

34.CCTV of Travelodge Kowloon, the hotel where Restaurant 5 is located, captured the Defendant walking into the back alley of the hotel at around 3:48 a.m. on 2 January 2020. At around 3:54 a.m., the Defendant climbed up a water pipe and disappeared from the footage. At around 4:13 a.m., the door leading to the back alley was opened, the Defendant, who was carrying a recycle bag, emerged from the door and left the hotel.

35.CCTV of Restaurant 5 captured the Defendant walking inside Restaurant 5 at around 3:50 a.m. on the offence date. The Defendant walked into the cashier counter and tried to open the drawer. The Defendant ransacked the cashier counter for about 8 minutes. He also used a knife to try to prize open the drawer. At around 4:01 a.m., the Defendant prized open the drawer with a pair of scissors, then took the money and some items from the drawer. At around 4:05 a.m., the Defendant was carrying a recycle bag when he left Restaurant 5 via the fire exit door.

36.PW11 recognised the Defendant as a former employee of Restaurant 5 from the CCTV footage. The Defendant used to work as a cleaner at Restaurant 5 since 14 February 2019, until he resigned on 24 February 2019.

37.At around 10 p.m. on 5 January 2020, PW11 went to the address provided by the Defendant on his job application form to look for the Defendant. PW11 was accompanied by PW12, his son and Ms WAIS Gloria Damingo, a waitress of Restaurant 5. Ms WAIS contacted the Defendant via WHATSAPP, eventually the Defendant opened the door and they entered the flat. PW12 saw her AUDEMARS PIGUET watch (item (h) at paragraph 34 above) on the top of the fridge inside the flat. PW12 told the Defendant that the watch belonged to her and took the watch back. PW11 also saw a mobile phone case that belonged to Restaurant 5. PW11’s son asked the Defendant in English whether he went to Restaurant 5 and stole from there, and the Defendant replied that they were mistaken. The Defendant then left the flat and said he will return the mobile phone to PW11, so they all left the flat. About 20 minutes later, they went to the flat again, the Defendant opened the door and handed a pink IPHONE (item (g) at paragraph 34 above) to PW11. The Defendant said he would contact them in the afternoon on the following day to return the rest of the property. However, the Defendant never contacted PW11 again. PW11 informed the Police of the above.

Arrest of Defendant

38.At around 3:37 p.m. on 7 January 2020, the Police found the Defendant at his home. Upon enquiry in simple English, the Defendant stated that he had worked at Restaurant 5 but he quitted the job and he had entered Restaurant 5 after he quitted to take some money and mobile phones. The Defendant was then arrested for “Burglary”.

39.The Defendant had cash of HK$148 and a SAMSUNG mobile phone on him.

40.House search was conducted at the Defendant’s home, one dark grey shirt (resembling those that the Defendant was wearing as captured by CCTV of Bar 1), one grey jacket and a pair of sneakers (resembling those that the Defendant was wearing as captured by CCTV of Restaurant 4) were seized.

Video-recorded Interviews

41.A total of 12 video-recorded interviews were conducted with the Defendant with the assistance of a Nepali interpreter and an English interpreter on 7 January 2020 and 8 January 2020 in relation to Charges 1 to 8, during which the Defendant admitted, inter alia, the following under caution:

Charge 1

(a)  He committed the offence on his own, he pushed open the glass door of Restaurant 1 to enter and steal the items. The door was locked but it opened when he pushed it with both hands. He was not wearing any gloves at the time of the offence, so he may have left his fingerprint on the door;

(b)  He went straight to the cashier counter once he got inside Restaurant 1 and took away the cashier machine. He used some T-shirts he took from there to wrap the cashier machine then left. He went to somewhere else in Tsim Sha Tsui to take the money out before throwing the cashier machine and the T-shirts away;

(c)  He was the person captured by the CCTV of Restaurant 1 at the material times;

Charge 2

(d)  He committed the offence on his own, because he was unemployed and he had to look after his family, he had 2 children;

(e)  He entered Bar 1 by pulling open the door. Some of the lights were on inside Bar 1 but there was no one inside. He took the cashier machine and left through the rear door;

(f)  He was the person captured by the CCTV of Bar 1 at the material times;

Charge 3

(g)  He committed the offence on his own, he pushed open the door and entered Restaurant 2. He went to the cashier counter, took the cash and a SAMSUNG Note 2 mobile phone. He may have left his fingerprint there when he pulled open the drawer at the cashier counter;

(h)  He was the person captured by the CCTV of Restaurant 2 at the material times;

Charge 4

(i)  He committed the offence with a Pakistani male named “SOHAIL”, whom he came to know in early November 2019. On the night of the offence, he first went to the Salon alone. He saw a stone on the floor, he picked it up and used it to hit the glass door, the glass broke, so he opened the door. He entered the Salon and looked around for about 2-3 minutes without finding any items, then he left;

(j)  Around an hour later, he met SOHAIL in a park in Jordan. SOHAIL asked what he was up to and he told SOHAIL about what he did. SOHAIL said let’s go back together, so he brought SOHAIL to the Salon. He entered the Salon with SOHAIL and they ransacked the Salon. They found cash of HK$2,000 inside a locked drawer, somehow they could put their hands inside the drawer and pulled out the cash. After that, they left through the same door and went back to Jordan. They spilt the money in half;

(k)  He was the person captured by the CCTV of the Salon at the material times;

Charge 5

(l)  He committed the offence on his own. He picked up a stone at the scene, hit the glass, and then opened the door to enter Restaurant 3. He left after stealing cash of HK$300 and a mobile phone;

(m)  He entered Restaurant 3 holding a can of CARLSBERG beer. He left the can of beer on a table inside Restaurant 3, he forgot to take it with him. The empty beer can seized by the Police at the scene was the beer can he left behind at Restaurant 3;

Charge 6

(n)  He committed the offence on his own because he was unemployed and he needed money. He found an iron crowbar at the staircase and used it to prize open the door to gain entry to Bar 2. He picked up a cashier machine, a cordless phone, a useless camera and a SAMSUNG tablet, then he left, leaving the crowbar at the staircase;

(o)  He had used up all the cash he stole and thrown away the cashier machine. He sold the SAMSUNG tablet computer to an unknown person on the street in Sham Shui Po for HK$300. No one wanted to buy the camera so he threw that away, he also threw away the cash box and the cordless telephone;

(p)  He was the person captured by the CCTV at the staircase of the building where Bar 2 was located at the material times;

(q)  The crowbar seized by the Police at the staircase was the crowbar he used to prize open the door to Bar 2;

Charge 7

(r)  He committed the offence on his own, because he was unemployed. He could not remember properly how he committed the offence as he was drunk at that time, he only remembered that he managed to enter Restaurant 4, took away the items and left;

(s)  He was the person captured by the CCTV of Restaurant 4 at the material times;

(t)  The jacket seized by the Police at his home was the jacket he was wearing on that occasion;

Charge 8

(u)  He committed the offence and stole cash of HK$20,000, one PIGUET watch, some keys and three broken mobile phones from Restaurant 5. He climbed up the pipe at the back alley outside the hotel and entered Restaurant 5 through an open window. The items were placed in the drawers inside the cashier counter and the drawers were unlocked;

(v)  Around midnight on 5 January 2020, the owner of Restaurant 5 (PW11), who knew his address, came to his home and asked him politely, so he returned an iPhone and the watch to PW11;

(w)  He used to work at Restaurant 5 but he could not recall when;

(x)  The clothes seized by the Police at his home belonged to him and he had worn the clothes on the date of the offence. He had already thrown away the black trousers he was wearing on the date of the offence; and

(y)  He could not recognise the person in the CCTV screen captures shown to him but he stated that if the CCTV captured that, then it must be him. He did not know about any other person.

Summary of Charges

42.The total value of all of the stolen property is HK$236,217, of which HK$118,017 worth of property was not recovered.

43.At the material times:-

(a)  the Defendant entered Restaurant 1 as a trespasser and stole therein (Charge 1);

(b)  the Defendant entered Bar 1 as a trespasser and stole therein (Charge 2);

(c)  the Defendant entered Restaurant 2 as a trespasser and stole therein (Charge 3);

(d)  the Defendant, together with another person unknown, entered the Salon as trespassers and stole therein (Charge 4);

(e)  the Defendant entered Restaurant 3 as a trespasser and stole therein (Charge 5);

(f)  the Defendant entered Bar 2 as a trespasser and stole therein (Charge 6);

(g)  the Defendant entered Restaurant 4 as a trespasser and stole therein (Charge 7); and

(h)  the Defendant entered Restaurant 5 as a trespasser and stole therein (Charge 8).

Mitigation

44.The Defendant is 40 years of age. He had the following records, among others, in 7 court cases:

(1)  theft (sentenced in 2002 by a fine);

(2)  theft (sentenced in 2003 to 4 weeks’ suspended sentence);

(3)  theft (sentenced in 2010 to 2 weeks);

(4)  burglary (based on theft, sentenced in 2010 to 20 months);

(5)  burglary (based on theft, sentenced in 2014 to 20 months)

(6)  burglary (based on theft, sentenced in 2014 to 24 months)

(7)  burglary (based on theft, sentenced in August 2017 to 22 months).

45.He was discharged from prison for item (7) in June 2018. It took him less than 14 months to recommence a round of 8 burglaries between August 2019 (Charge 1 here) and 2 January 2020 (Charge 8 here). He was arrested on 7 January 2020.

46.He is a persistent re-offender for theft and burglary (based on theft). This is an aggravating factor in his sentence before me.

Sentencing considerations

47.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises shall be 30 months’ imprisonment for a first offender of full age.

Sentencing this Defendant

48.On the facts, I will consider 30 months as the starting point for each count. Owing to his persistent re-offending for theft and burglary, I take 36 months as the starting point. After the one-third discount for the plea of guilty, the sentence is 24 months each.

49.The burglaries were separate incidents and warrant consecutive sentences. However, by totality principle, I order the sentences to be partly consecutive in that the 24 months on Charge 1 shall be served in full, with 2 ½ months on each of the 7 other charges to be consecutive to each other. The total sentence is 41 months and 2 weeks.