HKSAR v. Magar Abir Serpaja and Another

DCCC688/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 688 OF 2012

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Reasons for Sentence

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1.The 2nd defendant pleaded guilty to two charges of burglary. The 1st defendant was convicted after trial of one charge of burglary, Charge 2. Charge 1 on the charge sheet concerns premises known as the May Nga Kingergarten in To Kwa Wan which was burgled between 3 and 5 March 2012.

2.The headmaster of the kindergarten told the police that, at about 12.30 on the afternoon of 3 March, she left the school with the doors and windows secured and locked and, when she returned to the school some two days later, she found a ventilation window on top of the door in a classroom at the 1st floor was open, and $360 in cash were found missing. The fingerprints of the 2nd defendant were found on the wooden window frame of the classroom.

3.As regards the 2nd charge which I convicted the 1st defendant and the 2nd defendant pleaded guilty to, the facts  were that at 4.30, on the afternoon of 16 May, a Mr Wong Chor-hon, PW1, was working at the back of his garage when he saw an unknown male climbing into the window of an empty flat on the 1st floor of 18-20 Ko Shan Road in Hung Hom.  He was suspicious and contacted the police.  The police arrived a short time later and they found that the main entrance of the building was secured and chain locked.  A representative of the owners of the building attended and provided the police with keys to the premises.

4.Upon reaching Flat B of the 1st Floor of the premises at 22-24 Ko Shan Road, a police officer, PW3, found the iron gate of the flat was open.  He attempted to open the wooden door but found that it was locked inside by a door latch, and through the gap he saw the 1st defendant standing inside the flat, wearing a pair of gloves and holding a hammer.  He revealed his police identity and demanded that the 1st defendant open the door.  At the same time a second police officer, PW4, who was staying at the rear lane, saw the 2nd defendant climbing out from the window of the flat, jump onto the security ledge of a nearby building, and he was subsequently located and arrested by that officer.

5.Meanwhile the PW3 gained access to the premises and he found that a water pipe some 2 metres in length had been cut from the area near to the kitchen sink.  And later the representative of the owners attended and confirmed that that had come from the kitchen of the premises. 

6.The 1st defendant has one matter recorded against him a number of years ago, a matter of a different kind, for which he was given a suspended sentence.  I was told in mitigation that he is 37 years of age.  He was born in Nepal, where he was educated to secondary school, F3 level.  He worked as a cleaning worker, and he was unemployed at the time.  He is not a drug addict.  He is divorced, but he lives with his mother and sister.  I am told that he is now remorseful for the offence which he has committed. 

7.As regards the 2nd defendant, he was born in India in 1977.  I am told he is aged 34, again was educated to secondary school standard, has worked as a decoration worker and lives with his mother and brother in a flat in Wong Tai Sin.  He apologises to the court for his involvement in this matter.  He’s been working more recently as a delivery worker on a casual basis, earning some $6,000 a month.  Apparently he is anxious, when he is released from prison, to help his mother raise money to look after his mother. 

8.Although the premises in Charge 2 are residential premises, they were unoccupied at the time and were under the process of being renovated.  I have decided that the appropriate starting point for each of the offences is a term of 2½ years’ imprisonment.

9.The 1st defendant, I sentence him to a term of 2½ years’ imprisonment.  As regards the 2nd defendant, he pleaded guilty to the offence.  He is entitled to a discount of one-third.  I impose sentences of 20 months in respect of each of the offences.  I have considered the question of totality and I have decided that 5 months of the sentence on Charge 2 should run consecutive to the period of imprisonment imposed on Charge 1, so he will go to prison for 25 months.