HKSAR v. GURUNG LOK BAHADUR AND ANOTHER

DCCC 968/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 968 OF 2014

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Reasons for Sentence
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1.  The 1st and 2nd defendants have pleaded guilty to Charges 1 and 2 respectively. They have pleaded guilty to going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap 210.

2.  The particulars are that both defendants, on 16 September 2014, outside No 228D, Ma Tin Tsuen, a village in Yuen Long, New Territories, and this not being their place of abode, had with them articles capable of being used in the course of a burglary or theft such as screwdrivers, pliers, spanners, torches and a pair of gloves.

3.  The facts are straightforward.  PW1 lived at 189B of that village, and her home consisted of a house and three metal containers.  One of those containers was locked with a padlock.  The whole compound was surrounded by a fence, but the gate to that fence was left unlocked. On the morning of 16 September, the last time the padlock to the container was checked was approximately 7 am.  At that time the homeowner, PW1, was not there.  There was a Typhoon 8 signal raised at that time.

4.  At about 9 am a neighbour of PW1 who lived about 30 metres away saw both defendants acting suspiciously outside PW1’s premises.  He saw the 1st defendant enter the unlocked metal gate, whilst the 2nd defendant stood just opposite, acting as a lookout.  He called the police.

5.  Officers arrived some 10 minutes later.  They intercepted the 1st and 2nd defendants.  The witness, the neighbour, told the police that he had seen the 1st defendant go in and he had seen the 2nd defendant stand outside.  The homeowner later confirmed that there was nothing stolen from within her home or the metal containers, nor any signs of ransacking.  The padlock on the container was missing.  However, it was not found, and there is not enough evidence to conclude that the 1st defendant tampered with it when he went in.

6.  The defendants’ bags were searched and the items found inside.  Both defendants were arrested and silent under caution.  There were no admissions from either defendant.

7.  Both defendants’ best mitigation is their plea today.  Both are Nepalese nationals with permanent residency in Hong Kong.  The 1st defendant is 38 years old and a painter by profession.  When he does work he can earn up to $700 a day.  However, he does not have enough work to work full time.  I have been told his parents have retired to the United Kingdom and he regularly sends them money to support them in their retirement.

8.  The 2nd defendant is much younger, only 25 years old.  He arrived in Hong Kong just under 10 years ago.  He has a sister in Hong Kong.  I have been told that he works in restaurants and bars and can earn about $600 a day.  This defendant, the 2nd defendant, does have one previous conviction, but it is not an offence of dishonesty.  In 2013 he was sent to a drug addiction treatment centre for possessing drugs and possessing an identity card relating to another.  That is his only conviction.

9.  The 1st defendant, however, has 11 convictions, of which six are burglary offences, two are theft, and a handling stolen goods conviction.  The burglaries date between 1995 and 2011.

10.  The defendants’ records are relevant because Mr Collins, for the 2nd defendant, asks me to draw a distinction between the two men for the purposes of considering what is an appropriate starting point.

11.  There are no guidelines for sentencing for this offence, going equipped for stealing.  It is noteworthy that the maximum sentence is 3 years’ imprisonment.  I have been referred to an authority by Mr Poots for the prosecution, HKSAR v Li Ho Yin CACC 240/2012, and I quote from paragraph 8 of that authority:

“There are no guidelines for the sentencing of the defendants for the offence of going equipped for stealing. However, as with all offences, the courts seek to attain some degree of consistency in sentencing, subject of course to the individual facts of each case, including the circumstances in which the defendant was apprehended, the nature of the equipment carried, the nature of the defendant, his record, if any, the commission of other offences at the same time as the subject offence, and the principle of totality.”

In this authority the defendant had many burglary convictions. This fact and the facts of the case were taken into account for sentencing.

12.  In this case today, what is relevant is that there were two men acting together and, with equipment such as that found on them, had found a premises they were interested in.  The 1st defendant went inside a compound through an unlocked gate.  The 2nd defendant waited outside as if acting as a lookout.  Before they go any further, they are arrested.

13.  In the Li Ho Yin authority, that defendant was caught opening a window, clearly about to go further than just going equipped for stealing.

14.  Having considered the 1st defendant’s previous convictions, I would consider him in a category of a professional burglar, and the 2nd defendant, with his one previous unrelated conviction, can be differentiated.  Mr Collins takes me through various authorities to demonstrate that there is a range of starting points for a defendant with no previous similar convictions and not classified as a professional burglar.

15.  Defendants, please stand up.  After considering your pleas, your backgrounds, mitigation, the facts of the case, the authorities I have been referred to, and each defendant’s previous convictions, I will take, for the 1st defendant, a starting point of 21 months’ imprisonment.  Because you pleaded guilty you are entitled to a discount of one-third.  After that discount is applied, for Charge 1, you are sentenced to 1 year and 2 months’ imprisonment.

16.  For the 2nd defendant I will take a starting point of 15 months’ imprisonment.  You have pleaded guilty.  You are entitled to a discount of one-third.  After that discount is applied, you are sentenced to 10 months’ imprisonment. 

Do both of you understand those sentences?

1ST DEFENDANT: Understood.

2ND DEFENDANT: Understood.