HKSAR v. Limbu Umesh

DCCC 388/2020

[2020] HKDC 1017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 388 OF 2020

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REASONS FOR SENTENCE

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Charges

1.The defendant pleads guilty to Charges 1 and 2.  Both counts are burglary offences. 

Facts

2.The two burglaries took place on consecutive days at the same premises which was a storage room on the rooftop of a building in Yau Ma Tei, Kowloon. 

Charge 1

3.PW1 lived in the premises on the rooftop of that building.  There was a storage room opposite to his living place.  PW1 used the storage room to store various items.  He did not lock up the door of the storage room on 15 September 2019. 

4.Sometime after 11 pm on 15 September 2019, PW1 went to the storage room and found something was missing.  He checked the CCTV record.  He could see an unknown man enter the storage room and then leave with some properties. 

5.PW1 then locked up the storage room with chains and a padlock. 

Charge 2

6.The next day, ie 16 September 2019, PW1 was alerted by the sensor installed at the storage room.  He could see from his mobile phone that an unknown male was outside the storage room.  That man was actually the defendant.  The defendant was cutting the chains securing the storage room with a bolt cutter. 

7.PW1 called the police.  The police arrived at around 1952 hours.  At that time, defendant had already entered the storage room.  The door was locked. Shortly afterwards, the defendant came out.  He was then arrested by the police.

8.During the police interview, the defendant said under caution that he went to look for a friend living at the rooftop of the building on 15 September 2019.  He could not find his friend.  He later went inside the storage room and took away some books with intention to sell them.  The defendant also told the police that he went to the rooftop again the next day.  He was drunk and slept inside the storage room, only to be waken up by the police.  In court, the defendant admits that he entered the storage room on 16 September 2019 with intention to steal.

9.CCTV records show that the defendant entered the storage room on 15 September 2019 at around 2149 hours.  At 2202 hours, he left the building via the rear entrance with two boxes of items.  The records also show that the defendant entered the front entrance of the building on 16 September 2019 at around 1846 hours. 

Criminal Record

10.The defendant is aged 38.  Between 2010 and 2019, he has 11 previous convictions relating to a number of offences.  Except for conviction number 9 which was for possession of dangerous drugs, all the other offences were theft (apparently simple theft for which defendant was sent to prison on most occasion for some weeks or months). 

Mitigation

11.Defence Counsel says the defendant was born in Hong Kong.  He was brought back to Nepal at the age of 5.  He received education there.  Later, he got married in Nepal.  In 2008, when the defendant was aged around 26, he came to Hong Kong.  He could land here because he was born here. 

12.Counsel says the defendant got separated from his wife and son in 2010.  The defendant remained in Hong Kong.  After living here for a continuous period of seven years from 2008, the defendant applied for permanent residency in 2015.  His application was refused because he has incurred a string of criminal records. Nevertheless, the defendant remained here on the status of a Form 8 holder.  He has a girlfriend here and the couple had a daughter. However, the lady and the child live separately from the defendant.  Counsel says the defendant has been sleeping rough since 2014. 

13.Counsel says the defendant has a friend living in the building in question at the time of the offences. Thus the defendant knew the passcode to the ground entrance. 

14.Counsel points out that the property stolen in Charge 1 was of low value.  In Charge 2, the defendant broke the chains and the padlock but he had not stolen anything. By that time, the police had already come. 

15.Counsel says the defendant acted alone on both occasions.  The two burglaries did not require sophisticated planning.  The storage room, on the first occasion, was not locked up.  On the second occasion, the defendant cut the chains and the padlock with a bolt cutter, which was not the defendant’s property.  It is said the defendant picked up the bolt cutter at the staircase.  And indeed the police later found the bolt cutter at the staircase. 

16.Defence Counsel submits that the two burglaries should be regarded as taking place at a non-domestic premises. 

17.Counsel asked the court to consider the totality of the two offences which related to the same premises and occurred on consecutive days. 

Sentence

18.Although the building in question seemed to be a domestic building, the storage room burgled was an independent structure which was only used for storing things.  I agree with Defence Counsel that the two burglaries should be regarded as occurring at non-domestic premises. 

19.I accept the defendant’s saying that he went to the building to look for his friend on 15 September.  He could not find his friend. He later trespassed into the storage room, which was unsecured on that occasion.  He took away one box of books and one box of utensils.  The properties stolen seem to be of low value. 

20.On the second occasion, the defendant went to the rooftop again.  This time, the storage room was chained up and secured with a padlock.  The defendant found a bolt cutter at the staircase and used it to cut up the chains and padlock. 

21.The two burglaries did not involve sophisticated planning.  However, they were not opportunistic crimes either. 

22.In Charge 1, the property stolen were of low value.  In Charge 2, the defendant was unable to take away anything because the police had already arrived. 

23.In normal circumstances where a burglary took place at a non-domestic premises, the starting point would be one of 30 months’ imprisonment.

24.The defendant was a Form 8 holder when he committed both offences.  However, for the two offences in question, the defendant’s Form 8 holder status had no bearing on it.  The two burglaries were not burglaries of the most serious type.  They were committed in the circumstances as said.  I do not think it is appropriate to enhance the starting point for each of the two offences. 

25.The defendant has a number of previous occasions, mostly were related to simple theft.  He has no previous breach of burglaries.  Again, I do not think it is appropriate to increase the starting point of both offences just because the defendant has a number of previous convictions of that nature. 

26.I adopt 30 months’ imprisonment as the starting point for each of the two offences.  The defendant pleads guilty in time.  He is entitled to one-third discount.  On each count, the defendant is sent to prison for 20 months. 

27.The two offences are related to the same premises and took place on consecutive days.  I think it is right to order only 2 months of the sentence in Charge 2 to run consecutively to the 20 months’ imprisonment in Charge 1. Thus the defendant has to go to prison for a total of 22 months for both offences.