HKSAR v. Limbu Debindra Kumar

DCCC 466/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2014

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

2.The facts of this case are straightforward.  At about 3 am on 21 March 2014, the barman of a premises called the Life Bar locked up and left the premises secured.  The next day when he returned to work, he found the rear gate unlocked.  The premises had been ransacked.  Cash of $4,700 was missing from the cash register which had been prised open as well as four tablet computers were missing.  The value of the computers totalled $10,400.

3.CCTV footage was viewed, and from the footage one can see at about 7.30 in the morning two men entered the bar via the rear gate.  There was an attempt to move the CCTV cameras so that they would not be filmed, but that was unsuccessful.  Both men were seen prising open the cashier counter; one of the two was seen holding a torch.  That man, the defendant says, is him.  

4.Some two weeks later, the defendant was recognised in the street by a police officer.  That officer very astutely recognised the defendant from the CCTV footage.  The defendant was intercepted and arrested. 

5.Under caution, he admitted entering the Life Bar that morning with his friend Bikash.  He said in fact he followed his friend Bikash to the bar, and it was his friend who stole something from inside the bar. 

6.There was a subsequent record of interview where the defendant gave further details.

7.The defendant has pleaded guilty to this charge.  The reason that it has taken so long to come to sentence despite the defendant’s plea in July is because the defendant offered to assist the police.  He wrote to the police and offered the name and identity of the other male concerned.  Police took this information and took time to locate the other defendant. 

8.The defendant here was willing to give evidence and identified his accomplice and gave a statement to the police to that effect. In fact it was the defendant’s own initiative to offer information to the police.  The police did locate his accomplice, and he was brought before the District Court on 25 November when he pleaded guilty to a charge of burglary. He was sentenced to 24 months’ imprisonment after his plea. 

9.This assistance offered by the defendant is obviously very relevant to sentencing. 

10.By way of background, I have been told the defendant is 36 years old, married, and at the time of his arrest he was receiving government assistance.  He had two previous convictions that relate to theft offences, both in 2002. 

11.I have been told in mitigation that he has problems with drugs. 

12.Obviously the best mitigation today is his plea.  There is additional mitigation by way of the assistance he gave to the police.  This led to the arrest and conviction of his accomplice. 

13.I have had sight of the reasons for sentence for the accomplice in DCCC 888/2014.  A 2½ years’ starting point was adopted, but 6 months was added for two aggravating factors.  Three months was added because that defendant is a repeat offender, a recidivist.  Another 3 months was added to reflect the fact there were two persons who committed this burglary together.  After reduction for the defendant’s plea, he was sentenced to 24 months’ imprisonment.

14.I was being referred to another authority HKSAR v Tsoi Sin Yee CACC 27/2014.  In that authority the defendant provided a non-prejudicial statement and assistance to the authorities without having to ultimately give evidence.  A 40-per-cent discount as opposed to a one-third discount was applied to his starting point.  That was upheld by the Court of Appeal.

15.In that authority there is discussion as to the percentage an accused in this defendant’s shoes can expect over and above the one-third discount for a plea. 

16.In this case it is my opinion that both defendants are equally culpable, despite the defendant’s explanation he just held a torch for his accomplice.  The CCTV footage seems to suggest otherwise.

17.After considering the facts of the case, mitigation put forward, the defendant’s background, the plea, I would consider a 2½-year or a 30-month starting point appropriate.  However, I will add an additional 3 months to that starting point to reflect the fact that there were two burglars.

18.Normally, a one-third discount would apply, but here to take into account the assistance rendered to the police by the defendant, I will consider a 45-per-cent discount appropriate.  Therefore, I will deduct 15 months from the starting point of 33 months.  Therefore, the defendant is sentenced to 1 year and 6 months’ imprisonment.  Do you understand that sentence?

DEFENDANT: Yes, your Honour.