HKSAR v. GURUNG KRISHNA

DCCC663/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 663 OF 2011

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Reasons for Sentence

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1.  The defendant came before me this afternoon and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.  The particulars of the offence aver that on 22 April this year in Hong Kong the defendant entered as a trespasser part of a building known as Room C, 5th Floor, Po Cheung Building, No. 264 Reclamation Street, Yau Ma Tei and stole therein one notebook computer with battery, one computer monitor, one laisee packet with some money, one supermarket cash coupon, one wallet, one bank card, two membership cards, one charger with wire, one television remote control with batteries.

3.  The facts of the burglary are simple and straightforward. According to the Summary of Facts which has been admitted by the defendant, the occupant of the premises is a lady, PW1, who rented one of the four cubicles in a flat on the 5th Floor of the Po Cheung Building, 264 Reclamation Street, the premises. Two days before the day of the offence in the morning, PW1 closed the wooden door of the cubicle (Room C) and locked the iron gate before leaving for a 5-day business trip overseas.

4.  In the early hours of the morning on 22 April 2011, PW1’s neighbour was sleeping at that time but was waken up by the sound outside.   He then found the defendant putting a card-like object into the gap between the wooden door and the door frame of PW1’s room.  As the defendant was not a tenant living in the premises, this neighbour immediately made a report to the police.  He also saw that the defendant had later entered the flat of PW1 successfully.

5.  Two uniformed police officers received the report and arrived outside the premises.  They bumped into the defendant who was at that time coming out of the premises closing the door.  The defendant could not explain why he was there in the vicinity and he was also found by the policemen with two notebook computers and three mobile phones and some personal items in his rucksack. 

6.  One of the policemen also discovered signs of ransacking and therefore conducted a search of the vicinities.  A lot of the properties were found including a computer monitor, a wallet, a bank card and two membership cards at the staircase between the 7th and 8th floor.  As a result, the police managed to contact PW1 by phone and confirmed that those properties belonged to her.

7.  Later the defendant was arrested and he was brought back to the police station for further enquiry.  Initially, under caution, the defendant said nothing.   But later in a video record of interview, with the assistance of the Nepalese/English interpreter, the defendant claimed that he had been drunk while he was leaving on his way home and that he lived on the 8th Floor in the same building.  He said he could not recall the offence but he added that when he passed the iron gate, he found the door unlocked. 

8.  He admitted to the police that he entered the flat and then stole the computer and some other properties thereof.  All in all, the defendant relied on the fact that he was under the influence of alcohol and explained that he was mistaken.

Criminal records

9.  In the past the defendant has been convicted in Hong Kong once in 2000 for the offence of theft for which he was fined $2,000.  That conviction is of course spent.  For the purpose of the present case, I would treat him as a person of clear record.

10.  Miss Chan, the solicitor appearing for the defendant, then told me that the defendant is now aged 33.  He is married with a daughter now attending school.  The wife is a housewife, and they all look to the defendant for support.  The defendant has since 1990 settled in Hong Kong and earned for his living.  Before he was arrested, he was working in an American restaurant in Central. 

11.  Today he submitted to the court for consideration a number of letters including one from the wife and one from his ex-employer. I am not going to deal with the letters one by one. Suffice it to say that all these letters speak favourably of the defendant that he is a responsible husband, a dutiful employee and a reliable friend, etc.  All the authors of the letters have expressed surprise and disbelief that the defendant would come to be involved in an offence like this.  They all hope the court can be lenient and treat this offence as somewhat out of his character and to be as lenient as possible.

12.  The defendant in his letter stressed the fact that his wife was not working and has to look after the daughter.  He was very sorry for what he has done and hoped the court can be lenient and impose a less severe sentence. 

13.  Miss Chan also informed the court that since the defendant was arrested and was kept in custody in the last 3 months, the family had run into severe financial difficulties and they are going to apply for social security as a result.

14.  In mitigation, Miss Chan also had relied on the fact that the defendant was drunk at the time of the offence.  I have clarified with Miss Chan to what extent she is going to rely on the drunkenness of the defendant in the mitigation and Miss Chan had clarified that it was not the case that the defendant would seek to dispute his legal liability in this offence and all she wanted to say on behalf of her client is that his client was perhaps a bit drunk and foolish enough to commit this offence which took the case out of his ordinary character.

15.  She added that the defendant accepted that he himself was dishonest and he had the intention and stole at the time of the offence.  

16.  Burglary is a very serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who would be subject to extreme fright when a total stranger invaded his or her privacy.  The gravamen of the offence is no doubt the fear felt by the victims that a thief should have invaded their own house.  That was why burglary of the premises which was expected to be occupied was an aggravating factor. 

17.  Fortunately, PW1 was away at her premises.  The time of offence is early hours in the morning at 4 am.  In the normal course of event PW1 would have stayed inside the premises and if this happened and if she found out that suddenly a total stranger like the defendant appeared at her house, no doubt she would be subject to extreme fear.  She may have shouted for help and a struggle may follow, and there may be some bodily injury happened afterwards.

18.  I cannot accept the drinking frolic of the defendant as an excuse for committing an offence like this.  Invasion to a private premises is extremely unusual and serious.  It is not something even a drunken man will normally do.  I was not told why the defendant would do something like that.  There was no plea of under extreme financial hardship at the moment. 

19.  I was of course very sympathetic with the family circumstances of the defendant, especially the wife who had lost support of the husband and her daughter who had lost the love of her father.  But that is something which the defendant should have thought clearly before committing the offence and not now come to rely on the family circumstances hoping that the court can give some sympathy and reduce the sentence.

20.  The Court of Appeal has said so many times before that family circumstances will not be accepted as an effective mitigation especially in cases of serious crimes and this is one of them. Therefore, the only effective mitigation is the defendant’s plea of guilty which saves a lot of court’s time and is of course an indication of true remorse.  For this, I shall give him the only one usual one-third discount on account of his plea. 

21.  The usual tariff for a burglary of a domestic premises is said to be 3 years.  After one-third discount the sentence will be 2 years’ imprisonment.