HKSAR v. GURUNG KRISHNA BAHADUR

DCCC521/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 521 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to five charges, one of theft, one of possession of a dangerous drug, one of possession of apparatus fit and intended for smoking a dangerous drug, one offence of handling stolen goods and one offence of breach of condition of stay. He has agreed a set of facts and I found the charges proved and convicted the defendant on all five charges.

2.  The charges arise out of the interception of the defendant by police on 25 March 2011 in Chung King Mansions and there was an identity check and a transparent plastic bag was dropped by the defendant. This was found to contain 0.06 grammes of methamphetamine hydrochloride, that is Charge 2.  On returning to the defendant’s residence, the apparatus for smoking a dangerous drug, which is the subject of Charge 3, was discovered. 

3.  Also underneath the bed inside one of the rooms a canvas bag was found.  Besides some mobile phones was also what is described as an Adidas vest and denim cloth bag were found inside the canvas bag.  A wallet was discovered and there were a number of stolen items discovered. These are particularised in the charge, Charge 4.  As it stands they were seven identity cards, a home visit permit, seven driving licences and eight bankcards.  And, of course, it was admitted that those are all stolen goods and a number of the owners of the identity cards and driving licences were discovered.  A number of them were taxi drivers who had reported them missing and involved thefts that had occurred between July 2009 and February 2011. They form the subject of the 4th Charge.

4.  The 1st Charge arises out of the discovery of one of the identity cards and driving licences.  This was identified by the third prosecution witness and he, in fact, positively identified the defendant as a passenger he had had who had stolen PW3’s wallet which contained an identity card a driving licence and a Octopus card and $300 in cash that he stole on 23 April 2010 and also the wallet as well.

5.  The defendant gave some records of interviews. He admitted he had used $100 to purchase some dangerous drugs.  He was going to take them back to consume.  He said the canvas bag and the Adidas vest and all the identity cards, driving licences and bankcards belonged to a friend of his, Gjura Sing and he kept the property of Gjura Sing when they had moved flats. He knew that Gjura Sing had been arrested for another case and that he had purchased the canvas bag to keep the property of Gjura Sing before he moved into another premises. 

6.  As far as the overstay is concerned, the defendant had been overstaying since 4 April 2009. 

7.  The defendant’s antecedents were admitted.  He is currently aged 39 years.  He received his education in Nepal and had been working in Hong Kong on the airport for a number of years.  He has some previous convictions for theft, a total of three.  In 2008 he was subject to a 4 month sentence of imprisonment for theft and again in 2009 another 4 months sentence of imprisonment for theft.

8.  Now, I heard mitigation advanced on his behalf. The defendant’s personal circumstances are that he is separated from his wife - he has been married - and separated since April 2008.  His wife is in the United Kingdom.  He has a son aged 14 who is again a citizen of the United Kingdom but who is studying in Nepal.  His parents are in the United Kingdom along with his sister.  He tells me that he remits money to pay for his son’s education and also some money for his parents.  He had worked as a construction site worker for 10 years from 1997 to 2007 at Shek Lap Kok and also as a security guard.

9.  The defendant admitted freely through his counsel that he had been a drug addict but he has been remanded for some time now and anticipates that his addiction is no longer active.  He tells me that he committed the theft from the taxi driver because he needed money and it was an opportunistic theft.  He, as far as the drug case is concerned, he committed those because at the time he had a need for drugs. 

10.  On the 4th Charge he admits that he had handled the items in the bag on behalf of the gentleman he named in the video record and he said he was acting as a kind of warehouse for those goods. 

11.  On the 5th Charge he has admitted that he has overstayed but sees it - it is submitted to more of a technical case than an actual one because he is in fact entitled to be a Hong Kong permanent resident.  And he has never, in fact, completed a formal application to be a permanent resident but if he did so then he would be entitled to be granted that status.  So given that, his failure to regularise his status is really more than negligent than anything else. 

12.  Also in mitigation it was said that he has pleaded guilty to all these offences and he has shown remorse; that the drug offence is really a part and parcel of the same thing; drugs were bought and consumed.  The gravity of that offence could be dealt with by making the sentences concurrent.  It was said that the theft was opportunistic and the handling case is less serious because he was holding goods for his friend.

13.  Now, dealing with the question of sentence, as far as the theft is concerned it is a theft from a taxi driver by stealing items that were in the taxi.  It did involve the theft of the wallet which contained a Hong Kong identity card and, of course, that was retained because it was found in the defendant’s possession in the red gift box which was inside the canvas holdall which was identified by PW3.  And, of course, as I said earlier the simple possession of an identity card relating to another person can be a serious offence. 

14.  This has been somewhat compounded by the nature of the goods that the defendant has been handling in Charge 4 which involve seven further Hong Kong identity cards.  It has been said, also, that the handling of the items can be as serious or in fact more serious than the theft of them.  For cases of handling stolen goods, a starting point for sentence between 2 and 4 years’ of imprisonment has been adopted.  So in respect of both the theft and the handling case I think I have to look at the kind of goods that were being dealt with by the defendant, especially that he was holding identity cards. 

15.  Now, I am going to deal now, having taken all these facts into account, with what I consider to be the appropriate starting points and finishing points for sentence after the deduction of one-third for the defendant’s plea of guilty.  The defendant is entitled to a full one-third discount for his plea of guilty in these cases. 

16.  On the 1st Charge, given this involved the theft of identity cards as well as driving licence, I am going to take a starting point for sentence of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for his plea of guilty.  On the 2nd and 3rd Charges, the drug offences, I am going to take on each one, a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

17.  On the 4th Charge, the handling of stolen goods, given that this does involve the handling of a substantial quantity of identity documents, I am going to take a starting point of 27 months’ imprisonment and reduce that to 18 months’ imprisonment for the defendant’s plea of guilty.

18.  On the breach of condition of stay, I take into account the mitigation that has been involved in that and I consider that after deduction of a plea of guilty I will simply impose a sentence of 7 days’ imprisonment.

19.  Now to achieve what I consider to be the correct overall totality I shall order the 1st, 2nd and 3rd Charges to run concurrently to each other but they shall run consecutively to the 4th Charge and the 5th Charge will run concurrently to all the charges.  By my calculation that will lead to a total overall sentence of 26 months’ imprisonment and that is the sentence which I impose which I believe reflects the correct overall totality.