HKSAR v. SHAHI BISHAL

DCCC 771/2022

[2023] HKDC 795

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 771 OF 2022

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Reasons for Sentence

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1.  The defendant, a Nepalese, faced 2 counts of burglary. Upon plea bargaining, the defendant pleaded guilty to Charge 2 and was convicted accordingly. The 1^st charge was left on court file.

Brief Facts

2.  Two village houses (House D and E) were being built on a land lot at Wang Chau Fuk Hing Tsuen in Yuen Long. The construction work, including electricity facilities, was mainly completed in February 2022. The doors and CCTV were not yet installed.

3.  PW1 Choi, was the proprietor of a construction company who was engaged in the construction of House D and E. In the morning of 18 April 2022, PW1 checked and confirmed that things were in order. On the following day at about 7:30 am, PW1 found that some electrical wires on the 1^st and 2^nd floor of House D missing. The same happened in House E where some wires went missing. It transpired that a total of 17 electrical wires worth about HK$25,000 were stolen. PW1 noticed that someone was pulling the wires on the 2^nd floor of House E.

4.  PW1 and the owner of House D and E saw the defendant at the staircase between the 1/F and 2/F of House E. The defendant attempted to flee but was subdued by PW1 and the owner of the house.

5.  The police arrived at the scene. A police officer conducted a body search on the defendant and found a screwdriver, a screwdriver head, and a folding knife in one of the defendant’s trouser pockets.

6.  Police discovered 3 rucksacks outside House E and found the wires stolen from House D and E and also some letters addressed to the defendant. The police recovered 8 electrical wires. The defendant was arrested and remained silent upon caution.

Mitigation

7.  The defendant made a timely plea to one of the charges. He is now aged 31 and was born in Nepal. He came to Hong Kong in 2017 and is staying in Hong Kong on a dependency visa. He was residing with his wife and 2 kids. The defendant completed his high school education in Nepal. He was enrolled to study a university degree but did not complete the study.

8.  The defendant worked as a construction site worker in Hong Kong, earning an average monthly salary between $18,000 and $30,000. The defendant was unemployed for a while prior to his arrest.

9.  The defendant committed the present offence because of his financial problem. He was an opportunistic offender when he walked past a construction site. He entered House E and stole 7 electrical wires which has the estimated value of about $10,200 odd.

10.  The defendant had previous convictions of theft. The defendant had been remanded from 20 April 2022 to 8 December 2022. The defence submitted that “given the lapse of time and potential additional hardship, any additional sentence should be minimal.” It is also submitted that the defendant is not a professional burglar. The defence submitted that the defendant acted alone, even though one of the rucksacks that was found outside House E does not belong to the defendant.

Sentence

11.  In normal circumstances, the offence of domestic burglary will attract a starting point of 3 years. The starting point can be lowered or increased when circumstances justified. The defendant was born in Nepal and came to Hong Kong for good in 2017. For the present case, the defendant was arrested in April 2022 and was granted bail in December 2022.

12.  The defendant had 2 previous convictions of theft back in 2018 and 2019. He got 4 months’ imprisonment in 2018 but had his 2 months’ imprisonment term suspended in 2019.

13.  A few material facts were omitted in the Summary of Facts and that will be to the defendant’s advantage. In the photo tendered by the prosecution (MFI-1), it depicted the bicycle that the defendant used to go to the crime scene. There were also 3 pliers or wire cutters shown. The content of the 3 rucksacks was not fully disclosed even though the defendant’s phones (item 24 and 39 of the exhibits list) and letters were found in one of the rucksacks. There is a camera (exhibits list, item 8) that belonged to the defendant. The grafting knife is of 28cm long, and the screwdriver is of 15cm long. The police also found 2 pairs of gloves in black and red colour (items 11 and 29), and one pair of labour gloves (Item 30). The length of the electrical wires was not mentioned. It is a bit arbitrary to suggest that all electrical wires were of the same categories and/or same value, as some of the wires were in yellow and green colour and some of blue/grey/brown colour.

14.  In any event, there is no strong evidence to suggest that the defendant acted with others to commit the burglary. But as the folding knife and screwdriver was found, it cannot be said that the defendant committed the offence without any equipment. Apart from that, the police cannot recover the remaining wires that were stolen.

15.  The court is obliged to sentence the defendant based on the admitted Summary of Facts. The defence said the crime scene was a construction site. I do not agree as the scene was a village house under construction, not just a construction site per se.

16.  Given the circumstances of the case, I would adopt a starting point of 2 years. I will give one-third discount for the defendant’s guilty plea. Hence, I sentence the defendant to 16 months’ imprisonment.