HKSAR v. GHALE DIL RAJ

DCCC 729/2022

[2024] HKDC 777

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 729 OF 2022

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Reasons for Sentence

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1.  The defendant was charged with one count of burglary (Charge 1)  with the alternative count of criminal damage (Charge 2), one count of criminal intimidation (Charge 3), and one count of failing to surrender to custody under s.9L of the Criminal Procedure Ordinance (Charge 4). He pleaded guilty to Charges 1, 3 and 4, and was convicted accordingly.

The summary of facts

2.  PW1 Wang was a property agent of King Lung Property Agency located at Shop A, 174 Shanghai Street, Yau Ma Tei (the shop). PW1 was authorised by the owner of Office B, 1^st floor, Kam Yin Mansion, Woosung Street, Yau Ma Tei (the Premises)  to handle all matters in relation to the Premises.

The rental of Room A of the Premises to D’s girlfriend

3.  There was a metal gate to the entrance of the Premises and a wooden door to the entrance of Room A of the Premises.  The gate was usually closed and could only be opened with a key. 

4.  On 7 July 2021, PW1 let out Room A of the Premises to the defendant’s girlfriend, called Gurung, and gave her the keys to the door and the gate.  Since 7 October 2021, Gurung has defaulted on rent.  On 24 December 2021, PW1 applied for recovery of vacant possession of Room A of the Premises.

Recovery of vacant possession of Room A of the Premises

5.  On 29 April 2022, PW1 recovered vacant possession of Room A of the Premises from the defendant and Gurung, with the assistance of 4 bailiffs and some police officers.  A notice for the recovery of vacant possession of the Premises was shown and explained to the defendant in Punti and English.  PW1 also changed the locks of the door at the costs of HK$500 in the presence of the defendant.  Further, PW1 reminded the defendant that he and Gurung could not return to the Premises. 

Charge 1

6.  On 1 May 2022 at around 14:30 hours, PW1 inspected the Premises and discovered that the gate was open while the lock of the door was removed.  He immediately called the police. 

7.  At around 14:45 hours, PC8962 (PW2)  arrived at the Premises and made enquiries with PW1.  PW2 found the defendant and Gurung in Room A of the Premises with a broken lock on the floor.  PW1 informed PW2 that the broken lock was the same lock which PW1 had installed on the door on 29 April 2022.

8.  The defendant told PW2 in Punti that the house belonged to him and that he had broken the lock because he could not enter the same. In Chinese words it is “間屋係我嘅，我入唔到嚟咪整爛個鎖” .  PW2 thus arrested the defendant for criminal damage. 

9.  In his first cautioned statement dated 1 May 2022 taken in the presence of the interpreters, the defendant admitted, inter alia:-

(a)  He and his girlfriend Gurung used to live in Room A of the Premises.

(b)  On 30 April 2022, it was raining outside. He was tired and wanted to return to Room A of the Premises. At around 11 pm, he broke the lock of the door with a stick that he found at the staircase.

(c)  After he had broken the lock, Gurung arrived at the Premises to rest and sleep.

Charge 3

10.  On 4 May 2022 at around midnight, PW1 was in the Shop when the defendant showed up and asked PW1 to return to him the keys to the Premises as they lived there. PW1 refused to give the defendant the keys. The defendant then told PW1 in Punti that he would be the cause of PW1’s death if he called the police again (in Chinese, “你再報警，我整死你”). PW1 was scared as he was worried that the defendant would injure him.  However, the defendant left the scene before PW1 could call the police. 

11.  At around 17:00 hours on the same day, PW1 returned to the Premises and saw the defendant there.  PW1 immediately called the police.  At around 18:15 hours, PC6819 (PW4)  arrived at the scene and found PW1 and the defendant.  After making inquiries, PW4 arrested the defendant for criminal intimidation.

12.  Under caution, the defendant claimed to have said the wrong thing out of the slip of the tongue (in Chinese, “唔好意思阿Sir，我一時口快快講錯嘢”). The defendant later confirmed his verbal admission in his second cautioned statement dated 4 May 2022 in the presence of interpreters.

Charge 4

13.  The defendant first appeared in the Kowloon City Magistrates’ Court for the present case on 6 May 2022.  The case was transferred to the District Court.  The defendant was granted bail in the District Court on 1 November 2022.  The defendant pleaded not guilty to Charges 1 to 3, and the case was therefore set down for trial from 4 to 6 October 2023.

14.  On 4 October 2023, the first day of trial, the defendant failed to appear in court.  The defendant informed the court through his legal representative that he had to seek medical treatment at Kwong Wah Hospital.  The case was adjourned to 5 October 2023.  On that day, the defendant’s legal representative told the court that the defendant became unreachable, and the defendant did not attend court that day.  A warrant of arrest was issued against the defendant.

15.  On 28 October 2023, the police intercepted the defendant during patrol and re-arrested him.  On 29 October 2023, a cautioned interview was conducted with the defendant for the offence of failing to surrender to custody as appointed by court.  The defendant stated under caution, inter alia, that:

(a)  He was sick on 4 October 2023. He went to Kwong Wah Hospital to seek medical treatment. However, the waiting time was too long, and he attended QEH in the end; and

(b)  He was also sick on 5 October 2023. He sought medical treatment at a private clinic in Jordan. He did not inform anyone that he was sick on the day.

Mitigation

16.  Defence counsel prepared a mitigation bundle dated 24 April 2024.  The defendant, aged 49, was born in April 1974 in Hong Kong.  He is a Hong Kong resident.  The defendant moved back to Nepal with his family when the defendant was one year old.  He received education up to the secondary level.  In 1997, the defendant returned to Hong Kong by himself. The defendant is single and met his girlfriend in 2013.  They resided in the Premises in question as of July 2021.  The defendant was a causal worker and a CSSA recipient. The defendant had been granted bail on and off (see paragraph 12 of the mitigation)  but has been in custody since 28 October 2023. 

17.  Regarding the burglary charge (Charge 1), it was submitted that the unusual feature of this case is that the defendant was the former resident of the Premises.  He was evicted by the landlord.  Shortly after that, the defendant and his girlfriend returned to the Premises claiming that they were taking shelter.  Their personal property remained in the Premises. The defendant only damaged the lock to gain entry.

18.  Defence counsel mentioned that attempts to plea bargain regarding Charges 1 and 2 failed on previous occasions.  The defendant had already indicated that he would plead guilty to Charge 2. 

19.  As regards Charge 3, it was submitted that the offence was a short-lived and one-off incident.  The defendant left soon after making the threat and no force was involved.

20.  For the absconding offence (Charge 4), it was submitted that the length of time before the defendant was re-arrested was 23 days.  It was said, the defendant has been in custody for 33 months already (paragraph 31 of the mitigation).

21.  Defence counsel said the defendant is not a drug dependent now. He is willing to compensate, but he has financial constraint at the moment.

Sentence

22.  The defendant was born in Hong Kong.  He moved back to Nepal when he was 1 year old.  The defendant returned to Hong Kong in 1997.  However, it is obvious that the defendant did not treasure what he got in Hong Kong and his conviction record commenced in October 2006.  He has a total of 7 convictions.  He had been sent to DATC because of his theft convictions back in 2018.  I was told that the defendant has an outstanding case involving injecting a dangerous drug when he was arrested in June 2023. 

23.  Plea bargain had been made but it was rejected by the prosecution on 3 occasions.  Legally speaking, the defendant cannot be said to indicate his pleas at the earliest opportunity.  That said, given the special feature of this case and the history of the proceedings, I am prepared to give the defendant a full one-third discount in sentence. As the defendant has been in custody for nearly 33 months, as mentioned by the Defence, it is likely that the defendant could be discharged from prison before long, barring any unforeseen circumstances.

24.  Regarding Charge 1, in normal circumstances, an offence of burglary involving domestic premises will attract a starting point of 3 years. But in the present case, the defendant was gaining entry into his former residence illegally by breaking the lock.  He had his personal property in the premises.  In these exceptional circumstances, I will take a lenient stance and adopt a starting point of 12 months.  With his plea, the sentence is reduced to 8 months.

25.  For the offence of criminal intimidation, I see the incident as a kind of emotional outburst without concrete intention to harm PW1.  I accepted that this could be regarded as a one-off incident.  It can be taken as a minor offence.  I intended to impose a fine, but eventually decided to adopt a starting point of 3 weeks and with his plea, the sentence is reduced to 2 weeks.  These 2 sentences are to be served concurrently.

26.  For Charge 4, it is a separate offence with a different nature, an offence committed by the defendant foolishly.  I adopt a starting point of 4.5 months and with his plea, the sentence is reduced to 3 months.  This sentence is to be served consecutively to the other sentences.

27.  That means, the defendant is sentenced to a total of an imprisonment term of 11 months.  As far as this case is concerned, with this sentence, it is likely that the defendant will be released soon.