HKSAR v. Gurung Rishi

DCCC 476/2021

[2022] HKDC 60

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial of one charge of burglary, contrary to s. 11(b)  and (4)  of the Theft Ordinance, Cap 210, Laws of Hong Kong.

Facts

2.The subject premises, located in a commercial building, is used as co-working space office. There is a staircase connecting the balcony of the premises to the roof top of the building.  Entry to the premises from the main entrance requires an access card.  However, the door leading from the premises to the balcony was not secured by a lock.  On the day in question, defendant went to the roof top of the building and he entered the premises via the staircase.  He then entered one of the rooms inside the premises and stole a hoodie, worth $100, which belonged to a tenant of that room.

Mitigation

3.The defendant was born in Nepal and is now 27 years old.  He pursed his studies in UK and obtained a diploma in sport in 2014.  He then worked as personal trainer and participated in various boxing competitions.  He returned to HK in around 2017 and continued to work as a fitness trainer and a freelance boxing trainer.

4.Regarding the criminal record, the defendant pleaded guilty to the offence of resisting a police officer and fined $2,000 in 2019.  Mr. Polson, counsel for defendant submitted the facts of that case was trivial and produced a transcript of the trial of another charge in the same proceedings which the defendant pleaded not guilty and he was acquitted after trial.  It appeared that the basis of the resisting was the refusal to be handcuffed by the police officer.

5.Mitigation letters put forward by Mr. Polson showed that defendant was an active volunteer in promoting Nepalese language, cultures and sports for the ethnic minorities youth and his students spoke high of him.

6.It was submitted by Mr. Polson that there were unusual features in the case of the defendant that the court can depart from the sentencing guidelines, being that firstly, the absence of any act of breaking-in and secondly, despite the fact there were other valuable items inside premises, defendant chose to steal a hoodie which is of minimal value.  Mr Polson relied on the judgment of HKSAR v Chow Chak Man & Another[1] and advanced that where the burglary may be viewed as not serious a community service order may be imposed notwithstanding there were no exceptional circumstances.  Having considered Mr. Polson’s submissions and the facts of the case, sentence was adjourned pending preparation of background report.

7.As revealed in the background report, defendant admitted that he did trespass into the premises but he had no intention to commit theft therein. He insisted the reason of entering the premises, which was rejected by this court, was to look for a female friend.   He considered the whole course of event foolish and attributed to his ignorance of the legal consequences.  Defendant’s sister expressed that defendant has a promising future of being a professional boxer and she hoped the court to treat defendant leniently as he was innocent.  They both asked the court to grant defendant a non-custodial sentence.

Sentence

8.The starting point for burglary offence committed in a non-domestic premises by a first offender, where there exists no aggravating or mitigating factor, is 30 months’ imprisonment.

9.In HKSAR v Wong Yiu Kuen[2], Mayo VP, who was one of the member of the Court in Chow Chak Man, expressed the view that one of the factors which appears to have been weighed as a rather exceptional case in Chow was that “the judge himself requested that the suitability report be obtained.  Having received a report which was undoubtedly favourable to the defendant, he then proceeded to impose a custodial sentence without giving any reasons why he changed what must presumably have been that this might be a viable sentencing option.”  His lordship further commented that the court in Chow appeared to have overlooked the fact that the offence was too serious for community service order to be utilized.

10.Wong was cited with approval in HKSAR v Wan Ka Kit[3] in which the appellant’s appeal against sentence, namely that he be detained in a training centre, following his conviction for an offence of burglary in non-domestic premises, was dismissed.  The appellant was 18 years and 10 months of age when he was sentenced.  The Court of Appeal in Wan emphasized that other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.

11.Defendant is an adult healthy offender and he was convicted after trial.  Absence of forcibly entry and the stealing of property which is of no or minimal value are not exceptional circumstances.  In HKSAR v Cheung To Ming[4], the appellant of that case walked into an open stall and took some cup noodles and consumed.  The Court of Appeal considered that a starting point of 18 months’ imprisonment appropriate having taken into account that the burglary was “opportunistic” and committed in the most unusual circumstances.

12.I have considered carefully all the circumstances of the case, including defendant’s personal background, and satisfied they are not exceptional which justified a non-custodial sentence being imposed.

13.In determining the starting point I am prepared to accept that the defendant somehow discovered there was a security loophole of the premises and the entry was not forced.  The offence could be seen as opportunistic.  Further, the item stolen is of low value and it is a gift to the tenant from the co-working space. Taking into account the nature and the facts of this burglary, I will adopt a starting point of 18 months’ imprisonment.  There being no further mitigating factors the defendant is sentenced to 18 month’s imprisonment.