HKSAR v. Gurung Tek Bahadur

DCCC 666/2022

[2022] HKDC 1265

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 666 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap. 210.

Facts

2.Ms. Lin Rui Yu was the manager of Wellcome Supermarket, Basement, Backingham Building, Nos. 317-321 Nathan Road, Yau Ma Tei, Kowloon (“the Supermarket”).

3.At about 0005 hours on 23 May 2022, Ms. Lin closed the main entrance of the Supermarket by lowering the electric gate (“the Gate”)  and then continued to work in the manager office of the Supermarket.

4.At about 0044 hours, whilst Ms. Lin was still working, she heard someone lifting the Gate.  She then viewed the CCTV footage and saw the defendant lifting the Gate by pressing a button, entering the Supermarket, taking a bottle of wine (“the Wine”)  from the display rack and putting it into a bag that he was carrying.  The Wine worth around HK$95.

5.Ms. Lin then intercepted the defendant, took the Wine out from the defendant’s bag and reported the matter to the police.  Shortly afterwards, the police arrived and arrested the defendant for burglary.

6.At the material time, the defendant entered the Supermarket as a trespasser, with intent to steal therein.

Mitigation

7.The defendant is aged 37 and was born in Nepal.  He was unemployed at the time of the offence.  He has 1 previous conviction of “attempt theft”.

8.In mitigation, Mr. Polson for the defence accepted that the proper starting point for burglary of non-domestic premises is 2 years and 6 months’ imprisonment.  He referred to the case of HKSAR v Cheung To Ming, CACC 406/2005 and submitted that the defendant was an opportunistic burglar and the starting point could be lowered.

Sentence

9.As the defence has accepted, the starting point for burglary of non-domestic premises is well settled.  This applies to a first offender with no aggravating or mitigating features. 

10.The defendant has 1 previous conviction record relating to offence involving dishonesty.  Nevertheless, I will not take that into consideration in sentencing.

11.In the present case, I do not accept the defendant was an opportunistic burglar.  It was not the case that the Gate of the Supermarket was left open. In fact, from the facts admitted by the defendant, the Gate was completely closed by Ms. Lin and the defendant was the one who pressed the button to lift the Gate.  Therefore, I consider the usual starting point of 30 months apply in this case.  Apart from the defendant’s guilty plea, there is no other valid mitigating factor.  In the circumstances, the sentence is reduced to 20 months’ imprisonment for the defendant’s plea.