HKSAR v. LIMBU SURJA AND ANOTHER

DCCC826/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 826 OF 2009

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Reasons for Sentence

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1.  Both defendants have pleaded guilty to a charge of burglary.  The burglary occurred shortly after midnight on 14 June 2009 in a building on the ground floor of Woosung Street in Yaumatei.  The property stolen was 20 rolls of copper wire, 2 bottles of liquid nail, 4 cutters, a plastic box with a cutter blade, a pair of gloves, 2 rolls of copper strip, 3 plastic bags and a nylon bag.  The value of the stolen property was $10,886.

2.  The facts admitted by the defendants disclose that the burgled premises are a shop which at the time was under renovation.  The front door of the premises was surrounded by wooden planks with an opened shaft and secured by a padlock.  The rear door was at the back of the shop, leading to a rear exit with wooden planks fixed against a wall.  Outside the rear door, the rear exit was surrounded by a brick wall and there was an iron gate installed.

3.  Shortly after midnight on the day of the offence two officers were on patrol in Ning Po Street when they heard a loud bang coming from the burgled premises.  They saw the rear iron gate of the ground floor of Woosung Street slightly open but nobody came out.  The officers kept the premises under observation and were joined by other officers.  When they went to the iron rear gate of the premises they found it was opened.  Shortly afterwards the two defendants emerged from the premises carrying the bags containing all the property the subject of the charges.

4.  The defendants were ordered to put down the bags, which they did.  The officers asked them questions but there was no response to any questioning by the defendants to the officers’ questions and one of the officers found that there were signs of prising at the rear door of the premises.  When arrested, both defendants remained silent.

5.  The padlock at the front door of the premises was found to be intact and wooden planks secured at the rear door were pushed aside with signs of breaking in.  The officers observed that there was a lot of equipment inside the premises which were similar to the property recovered from the defendants.

6.  The police contacted the contractor, a Mr Lam, and he attended the premises and confirmed that the property which had been recovered from the defendants was property which had been inside these premises which were under renovation.  Mr Lam told the police that he had closed the front and rear doors to the premises and had secured the wooden planks at the rear door before he had left at 7 pm the previous evening.

7.  Both defendants have previous convictions.  The 1st defendant has two convictions in the 1990s.  I note that one of them was for trafficking in dangerous drugs, for which he went to prison for 5 years and 10 months.  There were two other convictions recorded against the 1st defendant:  one in 2005 for theft, for which he was dealt with by way of a fine; and in 2007, for attempted theft, he was sent to prison for 6 months.

8.  The 2nd defendant also has a number of previous convictions.  He has made 12 previous court appearances, has eight convictions for theft and attempted theft, and was last imprisoned in September 2008 for an offence of attempted theft.

9.  In relation to the 1st defendant I was told that he was born in Hong Kong in 1974, but after two years returned to where his parents were from, Nepal, for his education.  I am told that having completed Form 6, he returned to Hong Kong in 1995.  Since then he has worked on various construction sites but has found it difficult to find regular employment.

10.  I am told that in 1997 he met a young lady from Nepal and as a result of that relationship he now has a 4-year old son.  The girlfriend has disappeared, and, presumably because of his record, the son is currently in the care of the Po Leung Kuk.

11.  I am told that has found securing employment extremely difficult since he left prison and he is currently receiving Comprehensive Social Security Allowance of $3,000 per month, out of which he has to pay his rent and his living expenses.

12.  As regards the offence itself, I was advised that the defendant’s instructions are that it was an opportunistic crime.  The defendant was in the habit of frequenting a grocery shop which is adjacent to the burgled premises.  This is a grocery shop which sells Nepalese food.  He had gone to the premises to have a drink and to get some food and it was under the influence of drink that he and his friend came across the premises the subject of the charge and decided to burgle them.  I am told that he is now very remorseful.

13.  The 2nd defendant has a similar background in that again he was born in Hong Kong.  He was educated back in Nepal to Form 4 standard and his surviving family - his parents and siblings - reside in Nepal.  He is single and lives alone.

14.  Again, he has worked on construction sites and because of his record has found it difficult to secure employment.  I am told that his Social Security allowance is $1,800 per month.  It was pointed out by counsel that notwithstanding the bad record of the 2nd defendant this is the first time he has been convicted of an offence of burglary.

15.  On behalf of both defendants it has been urged upon me that both defendants are remorseful.  There has been no loss to the owner because all the property in this case was recovered.  This was not planned or meditated and it was urged upon me that there are no aggravating features.

16.  As counsel has pointed out, the normal starting point for a burglary of this kind is in the region of 2½ years’ imprisonment.  I have considered the record in particular of the 2nd defendant to see whether that should be increased because he has an appalling record for offences of dishonesty.

17.  However, having considered all the circumstances in this case, I am prepared to accept as appropriate a starting point of 2½ years' imprisonment and I reduce that by one-third to reflect the guilty pleas which have been entered by the defendants.

18.  Each of the defendants will therefore go to prison for a period of 20 months.