HKSAR v. Chandradipathiyalage Nilantha Indika

DCCC 553/2025

[2026] HKDC 1431

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 553 OF 2025

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to a single charge of burglary, contrary to Section 11(1)(a)  and sub-section (4)  of the Theft Ordinance, Cap 210, alleging that the defendant entered a premises in Reclamation Street in Yau Ma Tei, Kowloon with intent to steal therein.

2.The dates for the offence were be between 14 August and 28 August 2024.  The facts, which have been agreed, showed that the premises was located on the first floor of a building in 90 Reclamation Street.  It was managed by PW1 and was used for storage and no one lived in the flat.

3.The flat was checked on 14 August 2024 and secured.  On 28 August 2024, on a return to the flat by the person looking after it, it was found that the metal gate and the wooden door behind had been prised open, the flat had been ransacked.  There was broken lock of the metal gate and a broken lock on the wooden door.  The window inside the flat was also broken, leading to a total repair costs $4,500.  Some minor items, some walking sticks, 6 walking sticks with a total value of $560 were missing from the flat. 

4.The defendant was located as a result of his fingerprint or palm print being found on the outside of the metal gate and also on the door frame of the wooden main door.  Defendant was found and was arrested then on 27 November 2024.  He made certain claims in his video-recorded interview.  Those are not particular relevant now the defendant has pleaded guilty to the offence.

5.Defendant is aged 45 years.  I am told he is Sri Lankan by birth.  He came to Hong Kong in 2006 and has been a resident in Hong Kong as a Form 8 holder it would appear from that time onwards.

6.He has a number of previous convictions. In 2008, he was convicted of robbery and sentenced to 32 months’ imprisonment at the same time as being convicted of remaining in Hong Kong without the authority of the Director of Immigration.  Since then on 5 more occasions defendant has been convicted of minor assaults and minor petty thefts which are described as shoplifting.  He has been fined and sentenced to short periods of imprisonment for that.

7.Defendant’s mitigation is as follows:  He is said to be 43 when he committed the offence, he is married, he has 2 children, said to be remorseful.  Although his plea is not at the first opportunity, he initially entered a plea of not guilty on 8 January 2026 and then later by a letter on 10 March 2026 indicated he would plead guilty and the court was informed on 9 April 2026.

8.Defendant says he committed the offences for financial reasons.  He cannot obtain employment due to his immigration status.  He said he needed to provide for himself and his family and he is not in a position to provide restitution or repair to the premises.  It can be said that save for the defendant’s offence in 2008, this is a much more serious offence than the other offending we can see from his criminal record.

9.It is also submitted that while it was isolated, no evidence that it had been carefully planned, not a substantial premises.  Defendant appears to be an impulse burglar and the premises was unoccupied.  The defendant asks in his mitigation that the court disregard his status as a torture claimant because of the long period he has been here and also asks if the court can give the defendant a full one-third discount despite the fact his plea was entered at a later stage than would be needed for him to gain that full one-third discount.

10.The offence the defendant has been convicted of does have guideline sentencing.  The normal sentence for the burglary of a domestic premises committed by a person of clear record who pleads not guilty would be a sentence of 36 months’ imprisonment.  It is submitted that that is not the appropriate initial starting point to take in regard to these premises because they are not occupied as a domestic premises although they lie within a building that has been used as a domestic premises. I consider that to be a submission that I must take into account.  There is of course in a burglary of these premises no or a very minor risk of encountering anyone inside the premises.  For that reason, I will take an initial starting point of 30 months’ imprisonment in respect of the offence.

11.I have to see if there are any aggravating factors in relation to the offence itself.  There would appear to be no aggravating factors that warrant an increase in that starting point in relation to the offence.  As far as the defendant is concerned, there is of course a possible aggravating factor in relation to his Form 8 status.

12.Defendant committed a serious offence here and it is clear law that in cases of that nature, the person of that status should receive an enhancement of sentence.  I note the length of period the defendant has been in Hong Kong.  It is significant and I take that into account when determining the enhancement to the original starting point.  I will enhance the sentence, having got this aggravating factor by 2 months.  The starting point is now one of 32 months’ imprisonment.

13.I must also determine the discount to be granted to the defendant for his plea of guilty.  The defendant has initially pleaded not guilty to this charge.  That, on the face of it prevents him from receiving the full one-third discount.  I note he then did indicate a plea of guilty by 10 March and we are now in the end of July.  The discount to be granted in this case should be ranged between 20 to 25 per cent of the starting point. 

14.I will take a discount of 25 per cent in respect of the defendant here.  That means there is a deduction from the starting point of 8 months leading to a final sentence of 24 months’ imprisonment and that will be the order of the court.