HKSAR v. LIMBU RUPESH

DCCC 121/2022

[2022] HKDC 629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 121 OF 2022

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REASONS FOR SENTENCE

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

2.  The particulars of the charge are that he, on 18^th day of November 2021, in Hong Kong, having entered as a trespasser part of a building known as Subway, Shop No 5, Ground Floor, Austin Plaza, 83-89 Austin Road, Yau Ma Tei, stole therein one can of soft drink and cash of HK$1,926.

3.  Full particulars of the offence are set out in the Summary of Facts dated 16 June 2022, admitted by the defendant.  This was a burglary of non-domestic premises.  In summary, the defendant burgled a restaurant.   At about 11:30 pm on 17 November 2021 Mr Pang, PW1, closed his restaurant.  He kept the cashier unlocked but locked the glass door at the entrance.  At 7 am on 18 November, he returned to the restaurant and found cash of $1,926 missing from the cashier and a can of soft drink missing from the fridge.  He reported the case.

4.  CCTV captured the defendant sliding open the glass door at around 12:42 am on 18 November 2021.  He entered the restaurant and stole money from the cashier and a can of soft drink from the fridge.  He then left at around 12:44 am on the same day.

5.  On 19 November 2021, the defendant was arrested.

6.  At a cautioned interview, he admitted that he burgled the restaurant as he had no money.  He stole some money and a can of soft drink.  He used a master key to gain entry.  At a cautioned video-recorded interview, the defendant further admitted that he used a key to gain entry into the restaurant.  He stole some money and a can of soft drink.  He used all the money already on food.

7.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tracy, counsel for the defendant.  I am told that defendant was born in Nepal and is now 27 years of age.  He was educated to secondary level in Nepal.  He came to Hong Kong lawfully and has resided with his parents and a sister.  He is still single.

8.  He is a man of previous good character except for a conviction for possession of dangerous drug, for which he had been sentenced to Drug Addiction Treatment Centre in December 2021.  He has completed that sentence in May this year.  Before arrest, he had worked as a transport worker earning monthly income of about $7,000.

9.  Defence counsel submits that as early as in his mention hearing on 19 May this year, the defendant indicated a guilty plea and his acceptance of the Summary of Facts.  It is emphasised that after arrest, the defendant readily confessed all, which demonstrated his remorse.

10.  The defendant was granted bail for the offence in his last conviction, ie possession of dangerous drugs.  His bail was revoked in September last year when he failed to answer bail.  It is accepted that the defendant was a wanted person when he committed the present burglary case.  Mr Tracy submits that the defendant has served a sentence in the DATC for 6 months and he is now no longer addicted to dangerous drug.  In all the circumstances, despite that he was a wanted person, the conventional starting point, ie 30 months’ imprisonment would be sufficient.

11.  The usual starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

12.  In the present case, the defendant burgled a restaurant at midnight with a master key.  He stole properties including about $1,900 from the cashier.  In these circumstances of offending, in my view, the usual starting point of 30 months should be adopted.  The defendant committed this burglary case while he had been granted bail and became a wanted person when he failed to answer his bail.  This may be properly considered as an aggravating factor.  But having considered all the circumstances and the background of the defendant, I agree with defence counsel that 30 months’ imprisonment should be a sufficient starting point.

13.  I will give the defendant a one-third discount for his timely guilty plea.  There is no other mitigating factor that can reduce the sentence further.

14.  For the reasons given, the defendant is sentenced to 20 months’ imprisonment.