HKSAR v. GURUNG NIRAJ

DCCC 1071/2021

[2023] HKDC 135

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1071 OF 2021

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REASONS FOR SENTENCE

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1.  Defendant Mr Gurung was convicted after trial before me of one charge of Attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Particulars are that he, on 19 August 2021, in Hong Kong, attempted to enter as a trespasser part of a building known as 2^nd Floor, No 50 Bowring Street, Yau Ma Tei, Kowloon, with intent to steal therein.

Facts the basis of sentencing

2.  On 19 August 2021, sometime between 0055 and 0239 hours, the defendant was caught by CCTV camera to have been acting suspiciously outside the premises known as 2^nd Floor, No 50 Bowring Street.  In particular, he was seen touching the door of the premises and apparently leaving some article(s)  on an attachment to the door.

3.  At about 0800 hours, when the resident of the premises PW1 was leaving the premises on his way to work, he found on the digital doorlock attached to the outside of the door a cigarette bud and a lighter.  He threw them away.

4.  After seeing the above CCTV footage on the same day, PW1 made a report to the police.

5.  On 14 September 2021, in the evening, in the vicinity of the premises, PC26865 (PW2)  declared arrest of the defendant for Attempted burglary.

6.  Subsequently, on 15 September 2021, DPC23672 (PW3)  with the assistance of a Chinese vs English interpreter (PW5 Wong)  and an English vs Nepalese interpreter (PW4 Rai)  served on the defendant a Notice to Persons in Custody (P6)  and conducted a cautioned Video Recorded Interview (VRI)  (P7)  with the defendant.

7.  During the VRI, the defendant voluntarily admitted that:-

(a)  he was the person captured by the said CCTV (#228 & #306);

(b)  he was there to see if there was anyone inside the premises and if there was none, to see if there was anything he could do (#240);

(c)  he might have taken something which he needed (#246);

(d)  he placed a cigarette and a lighter on the door lock in order to test out if there was anyone inside the premises (#272 & #312);

(e)  he had pressed the door lock twice that early morning (#288)  though he did not know the password (#294); and

(f)  he lived at the staircase below the floor on which the premises were situated (#348).

Criminal record

8.  Defendant has 2 previous convictions the first of which was for Theft (recorded before the commission of the present offence)  and the second of which was for possession of dangerous drug (recorded after the commission of the present offence).  Prosecution told me that the present offence was committed whilst the defendant was on police bail for the possession of dangerous drug offence.

Antecedents

9.  Defendant is aged 30 (29 at the time of the offence), single.  He was born in Nepal but has a HKID card.  He was educated to F6 level and was unemployed at the time of arrest.

Mitigation

10.  Defendant is unrepresented and did not say anything in mitigation; nor did he respond when asked about his previous convictions and whether he committed the present offence whilst on bail.

Sentence

11.  The normal sentence for a case of burglary of domestic premises is 3 years’ imprisonment: Attorney General v Lui Kam Chi [1993] 1 HKC 215. An attempt at it does not call for a lighter sentence: HKSAR v Mohammad Farooq, CACC 406/2013.

12.  In this case, there is the aggravating factor of commission of this offence whilst on bail.  For this reason, I increase the starting point to 3 years and 3 months.

13.  There being no mitigation submissions, nor can I see anything in the defendant’s favour from the material before me, I simply impose a sentence of 3 years and 3 months’ imprisonment on the defendant.