HKSAR v. Limbu Ananta

DCCC 1046/2020

[2021] HKDC 568

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1046 OF 2020

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REASONS FOR SENTENCE

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1.The Defendant (26), a Nepalese, together with another Nepali man, burgled a restaurant in Shelley Street, Central in the middle of the night but failed when success was already in sight—they came across the police on their way out with the loot.

2.The burglarized premises are a Lebanese restaurant which is on two floors (G/F and 1/F) on Shelley Street; it closes at 22:45 hours during weekdays. Shortly after mid-night on 29 June 2020, the restaurant manager had secured all the doors before leaving. 

3.A few hours later, the defendant and another Nepali man arrived in a taxi and then they turned into the rear lane leading to the back door of the restaurant. Before long, they emerged from the rear lane wandering in the street, and then went back in. Unbeknownst to them, their action was under the watchful eye of the police officers who happened to be patrolling in the vicinity.

4.The defendant pulled open the back door despite the manager’s efforts to secure it with a lock but the sound of opening confirmed the officers’ suspicion that they were up to no good.  While the officers were closing in on them, they entered the restaurant; a moment later, they came out with the defendant holding a garbage bag of loot.

5.An officer stopped them in the rear lane, the other man immediately took to his heels and made good his escape but while escaping he dropped an iPhone (a stolen property), the officer then grabbed hold of the defendant and yelled for assistance from his team. The defendant dropped the garbage bag and some other items onto the ground.   

6.At the scene, the officers first found a pair of gloves, a pair of scissors and an iPhone (stolen property) on the ground and in the bag, they also found, among other things, the following stolen properties:

(1)- A cash register with $2,558.70 in cash and a ring;

(2)- A cash register with $2,413.50 in cash;

(3)- A cashbox with $34.60 in cash and some foreign currencies;

(4)- Two iPads.

7.In a subsequent interview with the police, the defendant told the officers that he pulled open the door with his bare hands, it was the other man who quickly scooped up the valuables, put them into the bag and then handed it over to him.   By then, he realized that they were in fact doing something illegal in the restaurant.

8.The defendant pleaded guilty before me to one count of burglary.  He is no stranger to the court, he has two prior convictions—back in 2018, first he was given a suspended sentence (2 weeks) for possession of drugs, and a few months later was sent to prison for 15 months for pickpocketing with the activation of the suspended sentence.

9.In mitigation, the court heard that the defendant came to Hong Kong from Nepal at the age of 12, but he had to travel between the two places in order to complete his secondary education in Nepal. When he came of age, he became a Hong Kong permanent resident settling down here.

10.He has now changed to work in the construction site having been a bartender in a pub in Tsim Sha Tsui for 5 years. His parents separated and the defendant, still single, lives with his mother who is a cleaner by profession; his only sibling is an older brother who is serving in the army in the UK.

11.In his letter to the court, the defendant expressed his remorse for the wrong he had done and promised that he would not “go into such situation again”.

12.Counsel for the defendant, Mr Young told the court how the defendant came to commit the present offence. The defendant met his friend (the other man in the case) at a games centre about a month before (not know him too well), he was asked by his friend to go to the restaurant to help him retrieve some of his stuff for he used to work there. He was also told that they would grab some of the wine there (the court was told those wine to be given away to customers). Only when they were inside the restaurant, did he realize they were doing something illegal for he saw his friend grabbing the valuables.

13.Mr Young assured the court that there is no issue on the question of mens rea for the defendant had the intention to steal at the time of entry so long as they were thinking of taking away the wine.   

14.Turning to the story itself which I find very hard to believe. First of all, if his friend really wanted to get back some of his stuff, he could have gone to the restaurant during the day.  If those wine were to be given free, they could simply pay the restaurant a visit perhaps as a customer. Anyone in his right mind would have known that sneaking into a closed restaurant in the middle of the night would be asking for lots of trouble-it is just not worth it.

15.While acknowledging the usual tariffs for non-domestic burglary being one of 30 months, Mr Young, nevertheless submitted that the following factors might enable the court to depart from the usual sentencing guidance:

(1)- The burglary was of short duration lasting about 16 minutes. There was no plan or sophistication to the burglary;

(2)- All of the stolen items were recovered. The total value of the item was not great;

(3)- There was no damage to property. There was no ransacking of the premises or any disorder left whatsoever;

(4)- The defendant was a follower not a leader;

(5)- The defendant cooperated with authorities and provided a full confession to the police;

(6)- The defendant expresses his deep remorse and demonstrates it by pleading guilty at the hearing;

(7)- Though the defendant has a criminal record, it is for unrelated offences and he has already been fully punished for them, e.g. having suspended sentence activated;

(8)- The defendant has demonstrated insight into his offending and sincerely expresses his intention to turn over a new leaf, promising his mother and this honourable court that he will not go astray again;

(9)- The defendant is still young and hopes he can return as soon as possible to being a contributing member to Hong Kong society.

16.No disrespect to Mr Young, but I do not think any of the above, whether collectively or individually, would have amounted to something out of the ordinary which would provide the court with sound reasons to depart from the guidelines set down by the higher court.

17.On the contrary, the fact that the defendant acting in concert with another aggravates the matter.  

18.Given the facts of the case, I would adopt the usual starting point, i.e., 30 months and add a further 3 months for his partnering with another in the commission of the offence. Insofar as mitigation is concerned, apart from his guilty plea, there isn’t anything of substance.

19.As his plea is timely, he is entitled to a full one-third discount; having given the discount, the starting point is reduced to 22 months.

20.There being no rooms for further reduction in sentence, the defendant is sentenced to 22 months’ imprisonment.