HKSAR v. Limbu Gopal

DCCC 464/2020

[2021] HKDC 459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 464 OF 2020

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Reasons for Sentence

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1.The 2nd defendant in this case has pleaded guilty to a single charge of burglary.

2.The Admitted Facts for this burglary say as follows:  That on 15 April 2020, two men, PW1 and PW2, who were employed as security guards at the construction site at the Open University, where the structure of a building complex had been built.  They observed, on a live CCTV recording, two men outside the construction site.  They observed these men for some 30 minutes.  They observed the men pulled, it says, the water barriers, entered the construction site and climbed up the scaffolding on a building structure inside the construction site.

3.One of those witnesses, PW2, went to a place, informed the 1st prosecution witness and they both went up a staircase of the building to the 1st floor, where they observed this defendant, the 2nd defendant, in a place where tools and electric wires were stored.  He was seen to be bending over a reel of electric wire, about to pick it up from the floor. It is said that the light of the 1st floor which provided sufficient lighting for their observation.  The 2nd defendant was then subdued and guarded.  The other male, it is said, made away but was caught later.

4.The value of the electric wire which, it is said, this man attempted to steal, was worth approximately $1,000. 

5.Those are the facts admitted on behalf of the defendant.

6.The defendant’s antecedent showed him to be a man by way of Nepali origin who had been educated in Nepal but who was unemployed after arrest in Hong Kong, was described in the antecedent as being a cocaine addict without long term illness.  He is unmarried, has no family members and no fixed abode.  The defendant is, however, Hong Kong resident with an identity card of Hong Kong.

7.The defendant also has a criminal record, some 11 previous appearances in court.  It appears that it is shown that he has a number of convictions of possession of dangerous drug, for which he had been sentenced to a drug addiction treatment centre.  He has a conviction for assault and also of theft, and assault with intent to rob for which he has been sentenced to terms of imprisonment between 6 to 9 months.

8.The defendant, in his mitigation, points out that he is a Hong Kong identity card holder.  He is aged 41.  He has been married and is now separated from his wife.  He has a daughter aged 19 with whom he maintained some contact.  Before his arrest, he earned his living as a casual construction worker.

9.Furthermore, in mitigation, it was said that the case of the defendant in respect of this burglary that this was an amateurish and opportunistic burglary.  The 2nd defendant was ill-equipped with any items which could be of use to a burglar, nor with any means of transporting anything of substance likely to be found on the building site, including, it is said, the copper wire that he was bending over.  So this is an unsuccessful attempt to steal a single coil of wire worth some $1,000.  The site owner suffered no loss.

10.It is common ground that the usual starting point for non-domestic burglary is 30 months’ imprisonment.  That sentence of imprisonment can be increased if there are any aggravating factors and decreased for mitigating factors.

11.And in considering this case, if any aggravating factors exist in respect of the starting point for sentence, initially, I would do so.  The facts agreed by the defendant clearly make out that as far as he was concerned, he was involved in a burglary with another man.  It is properly seen and admitted to be a joint enterprise burglary, that is an aggravating factor.

12.The defendant has a criminal record of dishonesty.  However, no previous convictions for burglary.  I do not consider his conviction for dishonesty in this case amount to an aggravating factor which will increase the starting point of sentence.

13.I must now see what is the appropriate starting point for sentence in this case.  I am referred to the case of HKSAR v Li Chiu Yui, can be found at CACC 24/2014, a Court of Appeal decision.  In that case, the Court of Appeal looked at premises which were vacated.  At paragraph 11 in that case, the Court of Appeal opined as follows:

“Regardless of their different results, both the Chau case and the Shea case...”

And in that they refer to two previous cases HKSAR v Chau Man Ying at CACC 439/2011 and HKSAR v Shea Pat Chi, CACC 196/2012. They said that these cases:

“...lend support for the proposition that in the highly unusual situation where observably vacated premises with no or little loss of property are involved, the sentence for their burglary may reflect the fact by the adoption of a lower starting point for sentence. It is irrelevant whether the premises are domestic or commercial.”

14.In the case of HKSAR v Li Chiu Yui, which was a case of observably vacated premises with little or no loss of property, the Court of Appeal adopted a starting point of 24 months’ imprisonment instead of the normal 30 months’ imprisonment.

15.I must decide to what extent that case should impact on the starting point for sentence in this case.  Now, these premises may well have been observably vacant, that they were a construction site and not occupied but they were not vacated premises.  There were in fact security guards on site.  And secondly, there was property on the site and the Summary of Facts which the defendant has agreed, valued that property at $1,000.  So the facts of this case do not fall precisely within the rubric of the Li Chiu Yui case.  However, they do bear some similarity in that this was, on the face of it, an observably vacated premises and there was no actual property lost and the value of the property inside the premises was low.

16.In my view, this case fall somewhere between a normal case of burglary and the case of Li Chiu Yui, I will adopt in this case a starting point of 27 months’ imprisonment as opposed the normal starting point of 30 months’ imprisonment.  However, this starting point is subject to the aggravating factor of the fact that this was, as agreed by the defendant, joint enterprise burglary.  In order to reflect that aggravating factor, I will increase the starting point for the sentence by 3 months to 30 months’ imprisonment.  The defendant, of course, is entitled to a one-third discount from that starting point having regard to his plea of guilty.

17.This leads to a final sentence of imprisonment in this case of 20 months’ imprisonment and that is the sentence I will adopt, 20 months’ imprisonment.