HKSAR v. MAN BAHADUR MALL

DCCC 906/2018

[2019] HKDC 379

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 906 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant, a Nepalese Form 8 holder, committed two burglaries on the same night (17 July 2018), first one on a dwelling at Pitt Street, Mong Kok (Charge 1), the other on a sports shop at Waterloo Road, Yau Ma Tei (Charge 2).

2.  He pleaded guilty before me to two counts of burglary. In the domestic burglary, the woman occupier of the flat was actually asleep while the burglary was going on, and fortunately she had not been woken up, and thus not startled, by the thief. The defendant managed to make away with a number of items including a box of tools, a tent and a bag (total value at $1,500). When she got up in the morning, she discovered that her home had been burgled during the night before.

3.  As far as the non-domestic one was concerned, it occurred after closing time, the thief had prized open the rear door of the sports shop to get in and had stolen quite a few valuables inside such as computer, smartphones, camera, $3,000 as well as RMB $500 in cash, some commemorative coins, some paintings and ornaments etc (total value added up to about $30,000). When the owner returned in the morning at around 10:30 to open for business, the burglary then came to light.

4.  Later in the afternoon, an officer on the beat stopped the defendant for questioning, who was pushing a trolley in the street with a backpack.  Upon a search, the majority of the stolen items from the two burglaries were found from the backpack, still missing items include the cash, ornaments, paintings etc (total value at around $8,500).

5.  The court heard that the defendant, now aged 38 who is still single, was actually born in Hong Kong in 1980 (with a Hong Kong Birth Certificate) when his father, then a soldier with the British Gurkhas Regiment, was stationing in Hong Kong. As the then policy stood, the defendant and his mother could not stay but to return to Nepal while his father remained here serving in the army until his retirement.

6.  With a view to settling in Hong Kong, the defendant came back in September 1999 to apply to restore his permanent resident status which he lost due to amendments made to the Immigration Laws after the handover in 1997, counsel said. His application was refused by the Immigration Department, and the matter now is the subject of a judicial review the hearing of which was scheduled for 13 June 2019. It was under such circumstances that he was issued a Form 8 Recognizance while his application was being processed.   

7.  The defendant has not been a stranger to crime and prison ever since coming back to Hong Kong in 1999, he has amassed 7 prior convictions within a period of 3 years as from 2012 to 2015. His first convictions are three counts of attempt burglary for which he was sent to prison for an aggregate term of 2 years, a year later he was sentenced to 4 months for theft committed before the offence of burglary. Thereafter, all of his convictions are to do with possession of drugs - he was sent to DATC for the second time in December 2015 which is his last conviction.

8.  The defendant whose father died some years ago has no relatives in Hong Kong (his mother and brother are residing in Nepal), and because of his status, he is unable to find any jobs. Counsel said that the defendant is not receiving any financial assistance from the Government or the NGOs; he would turn to his friends for help every now and then, but most of the time he sleeps rough under flyovers.

9.  Without jobs, he was idled during this time, and came to know some people who introduced him to drugs, and on the night in question, he had taken some drugs believed to be heroin or ice before embarking on his criminal activities. Counsel has made it clear to the court that the defendant was not intoxicated to such an extent as to negate the mens rea – he knew what he was doing at the time. 

10.  Counsel said the locations of the two burglaries are very close to each other, and according to the time record of the CCTV installed there, the two burglaries were committed within half an hour of each other. In view of this, counsel asked the court to consider passing concurrent sentence.

11.  For the domestic burglary (Charge 1), I take 36 months as starting point while for non-domestic one (Charge 2), I take 30 months.

12.  To refer to the defendant as a Form 8 holder may in the instant case be somewhat misleading. He was born in Hong Kong and was once given but now lost the permanent resident status which is different from those torture claimants or mandated refugees who have never had it before. It would be wrong, in my view, to put him in the same category with those torture claimants or mandated refugees whom the Court of Appeal talked about in cases like Ali Saif CACC 309/2017, where the Appellate Court suggested an enhancement of sentence of not less than 6 months because of their Form 8 status while committing serious offences. And for the above reasons, I do not intend to increase the sentence for this factor.

13.  As regards concurrent sentence, the defendant in the instant case committed two separate and distinct offences which were separate in time and place involving different victims. It would only be right the sentence for each offence in the circumstances should be made consecutive subject only to the totality principle, or else the thief would be encouraged to commit as many burglaries as possible within a short space of time knowing that he would only be given a prison term for one burglary only.  

14.  Turning to his mitigation, there isn’t anything substantial except his guilty plea which is timely, so he is entitled to a full one-third discount. Giving the appropriate discount, the starting points for charges 1 and 2 are reduced to 24 and 20 months respectively.

15.  Taking into account the totality principle, I order that the term of charge 1 be run consecutively to 6 months of charge 2, total term is one of 30 months.  The defendant is therefore sentenced to a total of 30 months’ imprisonment for both offences.