HKSAR v. LINGDEN NAMFUNG

DCCC 1042/2021

[2023] HKDC 1686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1042 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  Defendant pleads guilty to Charge 1, burglary and Charge 2, failing to surrender to custody without reasonable cause. 

Facts

Charge 1

2.  There was a Bank of China branch at Castle Peak Road, Yuen Long.  The ATM room there operated on a 24-hour basis. One could simply push the glass door and enter into the room to use the ATM machines there at any time. 

3.  At 1.16 am on 19 September 2021, an ATM repairman received a report that the alarm for an ATM machine at the branch had rung.  He arrived at the branch around 30 minutes later. He found that the lower cover of an ATM machine had been prised open, exposing the safe box of the machine.  There were scratch marks on the machine and the safe box but the safe box remained locked and no cash was stolen. 

4.  CCTV captured Defendant at 1.11 am that day entered the branch and inserted a card into the machine.  He did not withdraw any money and left the branch with his card about two minutes later. 

5.  At 1.16 am, Defendant re-entered the branch. He took out a rod and started prising an ATM machine there.  However, he failed to open the machine and he left the branch at 1.18 am.  A customer soon entered the branch and used another ATM machine but after that customer had left at 1.24 am, Defendant re-entered the branch for the third time with his upper garment changed.  This time, he was able to prise open the lower cover of the ATM machine he had tampered earlier.  The lower cover was opened but Defendant could not open the safe box.  He left the branch soon. 

6.  Since Defendant had inserted his withdrawal card into the machine, the police was able to trace him and arrest him the next day. 

7.  Under caution, Defendant told the police among other things that he went to the branch with intent to withdraw some money but he found that his account had no money.  He got hold of a rod in the vicinity and used that rod to ‘repair’ the ATM machine. 

8.  Defendant now admits that he had entered the branch as a trespasser and attempted to steal therein. 

Charge 2

9.  On 17 March 2022, Defendant was admitted to court bail.  He was to surrender to custody at the District Court at 10.15 am on 13 October 2022. However, he failed to appear as scheduled and an arrest warrant was issued against him. 

10.  Four days later, i.e. 17 October 2022, Defendant was intercepted in Mong Kok by a police officer.  He was then re-arrested. 

11.  Defendant told the police that he forgot about the date of the court hearing. 

12.  Defendant now admits that his so-called ‘forgetting’ was due to his failure to check the date of the scheduled hearing. 

Criminal Record

13.  Defendant is now aged 21 years and 11 months old.  When he was first arrested for Charge 1 in September 2021, he was 19 years and 9 months old. 

14.  Defendant is a Nepal national but his mother and stepfather are Hong Kong residents.  Defendant came to live with them in 2015.  Since then he has been in Hong Kong but he is not yet a citizen here. 

15.  Defendant has a clear record here. 

Mitigation

16.  Defence Counsel points out Defendant was young; had a clear record; cooperated with the police; and pleaded guilty in court. 

17.  Counsel says Defendant lacks sufficient guidance and supervision from his parents.  He was ignorant of the seriousness of his burgling act, which was not carried out with sophistication.  Counsel says no money was stolen in this case and nobody was alarmed and Defendant finally gave up his misdeed on his own. 

18.  As to Defendant’s failure to surrender to court, Counsel says Defendant was arrested four days after his failure to appear in court on 13 October 2022.  And when he was intercepted by the police in the street on 17 October 2022, he made no attempt to flee or resist. 

19.  Counsel says Defendant is now remorseful for his foolish acts.  He asks the court to be lenient towards this young defendant. 

Sentence

Charge 1

20.  Defendant was young when he committed Charge 1 in September 2021.  And he is still young now, not yet 22.  However, he had committed a serious crime, burglary, Charge 1 and then failed to surrender to court as appointed, Charge 2. 

21.  Of the two offences, Charge 1 is more serious.  The burglary was not carried out by Defendant with much planning. Yet he was quite persistent in his try that early morning.  He only gave up his misdeed when he could not successfully prise open the safe box after he had opened the lower cover of the ATM machine with the rod. 

22.  The starting point for Charge 1 should be one of 30 months.  Defendant pleads guilty in time. He is entitled to a one-third discount.  I thus sentence him to 20 months’ imprisonment for Charge 1. 

Charge 2

23.  Defendant failed to check his bail form. He was not serious enough with his obligation to attend court as scheduled.

24.  Defendant was arrested four days later after the scheduled court hearing.  It was a short period but it was only because the police happened to come across him in the street.  It was not that Defendant surrendered himself.

25.  The starting point for Charge 2 should be one of 3 months’ imprisonment.  Again, Defendant pleads guilty in time. He is entitled to a one-third discount.  The sentence after plea for this charge would be 2 months’ imprisonment. 

Totality

26.  Both charges are separate and distinct offences.  The two terms of imprisonment should run consecutively.  Defendant thus has to go to prison for 22 months for his plea to both charges.