HKSAR v. Gurung Iman Sing

DCCC 888/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 888 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleaded guilty to one charge of burglary, contrary to s 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.Briefly stated, in the morning of 21 March 2014 the defendant together with another male trespassed on a property which was a bar situated on the 1^st floor of a commercial building in Tsim Sha Tsui.  Having so entered, the defendant prised open the cash register by a pair of scissors and took away $4,700 from within.  Apart from the money, the defendant also stole 4 tablet computers which he found inside the premises.  Each of the tablet computers was worth $2,600.  Therefore, the total value of the items stolen by the defendant was about $15,100. 

Antecedent

3.The defendant is aged 34.  He is a Nepalese living in Hong Kong and is married.  He lived on public assistance and is a drug addict. 

4.The defendant has 5 conviction records, the first three of them were theft and the remaining two were burglary.  At the time of the defendant’s arrest for the present case, he was serving a 20 months’ imprisonment for his last burglary.  That offence was committed on 27 March 2013 and was sentenced on 18 August 2014. 

Mitigation

5.Mr Littlewood who acts for the defendant informed the court that the subject premises of the defendant’s last burglary was also a bar.  He realistically submitted that the only mitigating factor in the present case is the plea of guilty.  He also invited the court to take into account totality.

Sentence

6.The subject premises in the present case were non-domestic.  Therefore, according to AG v Lui Kam Chi [1993] 1 HKC 215, I adopt 2½ years’ imprisonment as the starting point.  However, there are two aggravating factors in that the defendant is a repeated offender and that he committed the present offence together with another person: see HKSAR v Cheng Wai Kai (CACC 338/2007).  For each of these aggravating factors, I add 3 months on top of the starting point.  Therefore, the defendant’s sentence, before any deduction for mitigation, is 36 months’ imprisonment.

7.The only mitigation factor in this case is the defendant’s guilty plea, for which he is entitled to one-third discount.  After the discount, the sentence is 24 months’ imprisonment. 

8.As regards totality, it cannot be denied that the present case is a separate and distinct offence from the defendant’s last burglary.  Moreover, the defendant is at least partly, if not solely, responsible for the fact that this case had not been dealt with at the same time as his last case.  Nevertheless, this does not mean that the court should ignore the question of totality: see HKSAR v Leung Ting Fung & Anor (CACC 109/2014). 

9.In my view, had the two cases been dealt with together, the appropriate sentence after plea would have been about 30 months’ imprisonment.  In order to achieve that totality, I order that only 10 months of the present sentence are to run consecutively to the sentence that the defendant is currently serving.