HKSAR v. Man Bahadur Mall

DCCC 995/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 995 OF 2012

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Reasons for Sentence

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1.The defendant pleaded guilty before me to three counts of attempted burglary. The premises in question are all dwellings situated at the ground floor of the street. What happened was in the early hours of 21 September 2012 defendant carried with him a shoulder bag acting suspiciously and that aroused the suspicions of some plainclothes officers who happened to be patrolling in the area. The defendant was trailed to the premises as particularised in the 1st charge where he was observed using a crowbar to prise but failed to open the gate of the premises there. Then he moved to other two premises in the nearby street. He did the same thing but again failed to open any of the premises in question. He was arrested by the police afterwards.

2.In his bag the police found the following:-

One crowbar, one bolt cutter, five screwdrivers, two pliers, two cutters, one hex key set and three torches. In a subsequent interview with the police the defendant admitted he used a crowbar to prise the iron gate of the premises with the intent to get in and look for some metal item for reselling.

3.The defendant, aged 32, has a clear record.  He is single, his father passed away, mother is in Nepal.  Counsel in mitigation stressed that there is no issue of injury to anyone, no damage to any property, no planning as such except tools were used and no evidence of vandalism. Counsel said the defendant was gainfully employed as a carpenter for two years and thereafter he worked in various sites as a construction worker in 2007. Then he could no longer find any work. 

4.It is submitted that the present case came to the very bottom end of criminality and the offences took place within 5 minutes of each other and counsel asked for concurrent sentence.

5.There are sentencing guidelines for burglary. For residential premises in the absence of aggravating features a sentence of 3 years is for consideration.  Here in the present case the defendant admitted attempted burglary.  According to section 159J(1)(b) of the Crimes Ordinance which provides;

“A person guilty of attempting to commit an offence shall be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.”

What that means is the sentencing guidelines for burglary applies to attempted burglary.

6.Having heard the mitigation put forward by your counsel, I do not see any reason to depart from the usual sentencing guidelines for this type of offence.  I take into account the fact that you pleaded guilty and you have a clean record. 

7.I take 3 years as a starting point for each of the offences, reduced to 2 to reflect your plea.  For each of the sentences you are given 2 years’ imprisonment and I order all the terms to run concurrent with each other.  The total term is one of 2 years’ imprisonment.