HKSAR v. Gurung Lok Bahadur

DCCC 359/2024

[2025] HKDC 204

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 359 OF 2024

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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)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.Mr Lau Kam Ho lived alone in the subject flat in Shun Hing Building, Yuen Long (“the Flat”).  There were a total of three sets of keys to the Flat. Mr Lau stuck a set of keys at the back of the iron gate to the Flat.

3.At about 6 am on the date of offence, Mr Lau checked the set of keys and found it intact.  He then left for work.  At about 7:15 pm on the same day, Mr Lau returned home and tried to open the iron gate with his key but was unsuccessful.  He heard strange noises coming from the Flat.  He knocked on the door but received no response.  The case was reported to the police.

4.At about 7:35 pm on the same day, the police arrived at the scene. PC16670 tried unsuccessfully to open the gate using Mr Lau’s key.  The police officers then forcibly entered the Flat.  Upon sweeping, the police found the defendant carrying a rucksack and hiding behind the washing machine in the kitchen.

5.The following properties of Mr Lau were found in the defendant’s rucksack:

(1)  an album containing old banknotes (at face value of HK$10,407.06);

(2)  coins of HK$50; and

(3)  a box containing a black Casio watch (valued at HK$500).

6.In a subsequent video-recorded interview, the defendant, under caution and in the presence of Nepalese and English interpreters, stated that:

(1)  He entered the Flat using the key stuck at the back of the iron gate. He then put the keys on top of a cabinet in the Flat;

(2)  He took the coins placed in front of a cabinet in the Flat and put them into his rucksack. He was planning to search for other items to steal from the Flat;

(3)  After a while, Mr Lau could not enter the Flat and called the police. The defendant then went to hide in the toilet. He was arrested when the police arrived.

7.At the material time, the defendant having entered the Flat as a trespasser, stole therein.

Background and mitigation

8.The defendant is aged 48, is Nepalese and born in Hong Kong.  He was educated up to Secondary 2 level and has worked as a restaurant worker, airport attendant and in construction.  He is married but separated from his wife and has no children. 

9.He has 20 previous conviction records consisting of 25 charges, only 4 of which is not dishonesty-related.  This is his eighth time committing the offence of burglary, the previous one being in 2017 when he was sentenced to 28 months’ imprisonment.  His last conviction record was in 2023 for attempted theft when he was sentenced to 6 months’ imprisonment, suspended for 3 years.

10.In mitigation, Mr Sherry for the defence accepted that the proper starting point for burglary of domestic premises is 3 years’ imprisonment.  He submitted that this was not a well-planned burglary as it was moments before committing the offence that the defendant saw the key to the premises by chance.  Moreover, the victim’s property was recovered without loss and the offence occurred in the absence of occupants without the use of force.

11.However, Mr Sherry accepts that the starting point may be increased as a consequence of the defendant’s criminal record.  He cited HKSAR v Lui Yuen Shun, CACC 160/2016, in which the Court of Appeal approved an increased starting point of 48 months’ imprisonment for each charge of burglary in a case involving two burglary charges where the defendant had a record which included 23 offences of dishonesty.

12.Counsel acknowledges that the defendant did breach his suspended sentence and he did not make any further submissions on this point.

Sentence

13.As accepted by the defence, 3 years is the appropriate starting point for a first offender of full age in cases of burglary of domestic premises (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  This applies to cases with no aggravating or mitigating factors.

14.This was not an opportunistic burglary and the defence does not assert it is.  The defendant intentionally and purposefully used a set of keys which the homeowner had stuck to the back of the iron gate to gain access to the premises and stole valuable items therein.  But for the defendant’s previous records, the usual starting point of 3 years would be applicable in the present case.

15.However as mentioned above, the defendant has a bad criminal record consisting convictions for 25 charges.  7 of these were for burglary, 4 for theft or theft from vehicle, 2 for handling stolen goods, 4 for attempted theft or attempted theft from vehicle or attempted taking conveyance without authority, 4 for going equipped for stealing, 2 for possession of dangerous drugs, 1 for criminal damage and 1 for loitering.  This is his eighth time committing the offence of burglary, the previous one being in 2017 when he was sentenced to 28 months’ imprisonment.  As mentioned, his last conviction record was in 2023 for attempted theft when he was sentenced to 6 months’ imprisonment suspended for 3 years.

16.The previous sentences did not deter the defendant.  Having considered the defendant’s antecedents and his evident recidivism, I consider the sentence should be enhanced by 9 months to reflect the fact that the defendant is a repeat long-term offender.  I thus adopt an enhanced starting point of 45 months.

17.The defendant shall receive one-third discount for his guilty plea. There is no other valid mitigating factor.  In the premises, the defendant is sentenced to 30 months’ imprisonment for the charge in this case.

18.The defendant was in breach of a suspended sentence when he committed the present offence, in the circumstances I order the suspended sentence to take effect in that 2 months of the sentence for TMCC 279/2023 is to run consecutive to the sentence of this case.