HKSAR v. THAPA PARVIN BAHADUR

DCCC 333/2022

[2022] HKDC 1440

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 333 OF 2022

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REASONS FOR SENTENCE

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Charge

1.  The Accused pleads guilty to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars of the offence are that the Accused, on 27th December 2021 in Hong Kong, entered as a trespasser into the Supermarket particularised in the charge (“the Supermarket”), therein stole six bottles of antiperspirant deodorant spray and one bottle of handwash.

Admitted Facts

2.  At around 2:10 am on 27th December 2021, PW1 checked that all doors and gates of the Supermarket were properly closed and locked, he then activated the alarm system before leaving.

3.  At around 4:08 am, PW1 received a call informing him that the alarm system of the Supermarket had been triggered, which also alerted the police. He therefore rushed back to the Supermarket.

4.  At around 4:20 am, PW1 and the police officers arrived at the Supermarket and found that the back entrance door was opened and the lower view panel was broken with pieces of glass found on the ground.

5.  Upon inspection, PW1 confirmed that 6 bottles of antiperspirant deodorant spray and one bottle of handwash had been stolen from inside the Supermarket (“the Goods”). The Goods were worth around $267.8 HKD in total.

6.  At around 5:30 am, the police officers spotted the Accused pacing back and forth at the corridor outside the back entrance of the Supermarket. They therefore approached the Accused to conduct an investigation.

7.  Under caution, the Accused admitted in Cantonese, inter alia, that:-

(1) He went to the back entrance of the Supermarket and smashed the glass of the door by kicking it;

(2) He entered the Supermarket to steal the Goods for self-consumption;

(3) He left the Supermarket through the same route and went back home, where he deposited the Goods and got changed; and

(4) He stole the Goods out of greed.

8.  The Accused was arrested, and a video recorded interview was conducted on 27th December 2021. Under caution, the Accused stated, inter alia, that:-

(1) On 27th December 2021, the Accused, feeling unhappy, consumed alcohol and proceeded to smash the glass of a random door by kicking it with his left leg. He then opened the door, and after he went inside he realised that it was a supermarket outside of opening hours;

(2) he then walked around and stole the Goods, leaving the Supermarket via the same route to head home, after which he realised he had left his backpack at a staircase near the Supermarket;

(3) he therefore returned to the Supermarket but saw that the manager was there, and as he could not get his backpack, he had a smoke instead;

(4) he was intercepted by the police officers;

(5) he confirmed that all the Goods, which were seized, were stolen from the Supermarket; and

(6) he confirmed that during the commission of the offence, he wore a black hoodie, black trousers, and a pair of white shoes, all of which were seized.

9.  CCTV cameras installed across various locations captured the Accused entered into the Supermarket, took the Goods and left the Supermarket.

10.  The Police officers then conducted a house search at the Accused’s home in his presence on the day in question, and they seized the Goods as well as the clothing he wore at the time of the offence.

Background and Mitigation

11.  The Accused has a clear criminal record, and he agreed to the prosecution’s summary of facts and pleaded guilty when plea was first taken from him.

12.  The Accused is 19 years old, and was 18 years old during the commission of the offence. The Accused was born in Hong Kong in 2003, and prior to his appearance before me, he lived in an estate apartment with his parents, elder sister and her son.

13.  The Accused graduated from secondary school in India.  He then returned to Hong Kong in early 2021, and since May 2021 he has been working as a full-time waiter, earning HK$15,000 per month.

14.  Defence counsel submitted that as a result of the arrest, the Accused was held in custody from 27th December 2021 to 6th January 2022. He was therefore laid off from his job.  After his release as he was later given bail, he was employed as a full-time waiter and earned HK$17,000 per month.

15.  Defence counsel also submitted that at the time of the offence, the Accused was left living alone as his family all left Hong Kong for various reasons. Therefore, he felt lonely and insecure and hence he lacked a guardian or parental guidance. The Accused’s parents returned to Hong Kong in around June 2022.

16.  Counsel also stated that the Accused is extremely remorseful. Prior to the offence, he was at work and was scolded by the manager. He was extremely upset and turned to drinking alcohol when he was on his way home. He underestimated the effect of the alcohol. When he arrived at the estate of his place of residence, he decided to drink and walk around. Spontaneously and out of anger, he randomly kicked a door which turned out to be the door of the Supermarket. The door opened and the Accused spontaneously decided to take the Goods.

17.  It was said on his behalf that the value of the Goods was low, the act was not planned and the Accused co-operated with the Police. The Accused is also willing to compensate the loss suffered by the victim.

18.  After the Accused’s sister learnt about the offence, she reached out for help from a social worker, whom, I was told, has provided guidance to the Accused since February 2022. The Accused was arranged to commit voluntary works in July and September 2022.

19.  The Defence has submitted mitigation letters for the Accused. In gist, the Accused has recently become an uncle and wishes to take up a greater familial role, he is remorseful and promises to stop drinking and to stay on the right side of the law. His family describes him as being hard working, charming, responsible, helpful, obedient, and disciplined. It has also been said that the Accused has matured and learnt his lesson since the event.

20.  Counsel for the Accused asked for a community service order.

21.  I bore in mind the age of the Accused at the time of plea. As a consequence, I called for various pre-sentencing reports. The Accused was opined to be suitable for a community service order, Rehabilitation Centre order and Training Centre order. The Young Offender Assessment Panel was of the opinion that the Accused is a reckless and simple-minded person, that a community service order is most suitable for the Accused. The Defence urges this Court to adopt the recommendation and impose a community service order.

Sentencing

22.  There is no doubt that burglary is a serious offence. The higher courts have laid down clear guidelines as to sentence. With regards to burglary of non-residential premises, a normal starting point is that of 2.5 years imprisonment (See R v Wong Man[1] and AG v Lui Kam Chi[2]).

23.  This case involves a non-residential establishment. Although the normal starting point should be one of 2.5 years imprisonment, the Court of Appeal stated in the case of HKSAR v. Leung Kai Yin[3] that the sentencing guidelines are not fixed, and in cases of spontaneous burglary, the courts may adopt a more lenient sentence.

24.  I accept this was a crime that was committed spontaneously. There was no evidence of any planning, and no tools were used by the Accused. Further, the Accused was cooperative with police investigation, saving both police and court’s resources.

25.  As stated before, I called for a number of pre-sentencing reports. I am aware of all the contents of the reports.

26.  In Secretary for Justice v Li Cheuk Ming[4] the Court of Appeal held that for serious offences, including bribery and corruption, a community service order would only be imposed where there are exceptional circumstances. This view was also repeated in the context of burglary in HKSAR v Wan Ka Kit[5], where the Court of Appeal emphasised “that other in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary”.

27.  In considering the options before me, I bore in mind all the mitigation submissions made on the Accused’s behalf as well as the contents of the reports. I also bore in mind the supplemental submissions made on the Accused’s behalf in light of the contents of the pre-sentencing reports. In particular, I note that firstly, the Accused is of young age. Secondly, the offence was not committed by reason of any premeditation. Thirdly, the monetary value of the Goods taken was low. Fourthly, part of the reason for committing the offence was due to the lack of parental guidance, maturity and self-discipline. Finally, although the Accused still strove to be gainfully employed and was assisted by a social worker since his arrest, he on one occasion, out of curiosity, had a try of a cigarette that emitted strange smell, which he was told was cannabis, in August this year. Nevertheless, the Correctional Services Department confirmed that the Accused is free from dangerous drugs.

28.  Having considered all materials before me, I am of the view that the reasons for committing and the circumstances of the offence, together with the Accused’s co-operative behaviour upon arrest, justified the deviation from the usual sentence for non-domestic burglary cases. That said, in view of the Accused’s age, hardly sufficient supervision by his parents or elder siblings, his immaturity as displayed by his trial of a strange cigarette which turned out to be cannabis whilst (1) he was waiting for the disposal of these proceedings; and (2) a social worker had already been engaged to assist him, it shows that the Accused still requires disciplinary training and guidance on self-discipline.

29.  Above all, this case does not suffice to be categorised as the most exceptional occasion for an order of community service order.

30.  On the other hand, by reason of the aforementioned matters, together with the need for reforming young offenders like the Accused, after careful consideration, I have decided to make a Rehabilitation Centre order as the sentence for the charge the Accused is facing. In making this order, I have already taken into account the recommendation of the YOAP. I believe that a Rehabilitation Centre order will benefit the Accused most in terms of disciplinary training, reformation and punishment.

31.  Accordingly, the Accused is sentenced to detention in the Rehabilitation Centre. A compensation order in the sum of HK$40 is made against the Accused.