HKSAR v. HETTIARACHCHIGE THISERA DINESH PUSHPAKUMARA

DCCC 867/2025

[2026] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 867 OF 2025

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REASONS FOR SENTENCE

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The Charge

1.  D pleaded guilty to 2 charges, namely:

(1)  Attempted Burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap. 210 and sections 159G and 159J of the Crimes Ordinance, Cap. 200 (Charge 1); and

(2)  Attempted Theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and sections 159G and 159J of the Crimes Ordinance, Cap. 200 (Charge 2).

Summary of Facts

2.  At all material times, Mr NG Ching Pak (“PW1”)  was the manager of Fok Kwan Restaurant, Shop 16B, Folkland Mansion, 8 Walnut Street, Tai Kok Tsui (“the Restaurant”). The Restaurant has a back alley that connects Tung Chau Street and Bedford Street (“the Back Alley”). The Back Alley also has a side alley (“the Side Alley”).

3.  At 3 p.m. on 24 January 2025, PW1 checked that the storage racks (“the Storage Racks”)  and other objects outside the Restaurant were in order.

4.  At around 9:15 p.m., PW1 returned to the Restaurant and found that the Storage Racks had been rearranged. PW1 checked the CCTV footage and saw that a male (later known to be D)  walking along the Back Alley at 8:52 p.m. The case was reported.

Surveillance Operation

5.  At around 2:22 a.m. the next day (25 January 2025), PC 15042 (“PW2”)  was conducting surveillance at a bush at Tung Chau Street around 15 meters from the Back Alley, while PC 25375 (“PW3”)  was conducting surveillance near 68 Bedford Street around 15 meters from the Back Alley. There was sufficient lighting from the fluorescent tube in the Back Alley and PW2 and PW3’s views were not obstructed.

6.  D (South Asian, aged 40-50, thin-built, wearing a yellow jacket, black jeans, white shoes and carrying a black backpack)  cycled from Tung Chau Street to the Back Alley and turned left into the Side Alley. D walked to the Back Alley, picked up a broom and stuck some white adhesive tape onto the tip of broom. D then lifted the broom and stuck the tape on the lens of a CCTV camera.

7.  Thereafter, D went into the Side Alley and came out holding a bolt cutter. D used the bolt cutter to cut the metal chain securing an around 2.5m-high wooden ladder. D then moved the ladder against the wall near the back door of Folkland Mansion and climbed the ladder. D climbed towards Flat 2H of Folkland Mansion but slipped and was left with one leg dangling in the air. D climbed down the ladder (Charge 1).

8.  D took the bolt cutter, climbed the ladder again and tried to reach Flat 2H. D then tried to cut the lightning rod grounding wire (the “Earth Wire”)  of Folkland Mansion, causing the wire to shake, but failed to detach it (Charge 2).

9.  D then returned the ladder to its original position and lingered at the Back Alley, smoking and speaking on the phone while holding a white container and a strip of wood. Thereafter, D walked to the Side Alley and got on a bicycle with a blue suitcase at the front of the bicycle.

Arrest and Caution

10.  At 3:40 a.m., PW2 and PW3 intercepted D outside the Side Alley at 51 Tung Chau Street. Upon search, PW3 seized a blue suitcase (Exhibit 27)  containing a green backpack (Exhibit 26), which contained: -

(a)  7 screwdrivers (Exhibits 1-6 & 15);

(b)  2 spanners (Exhibits 7 & 8);

(c)  2 saw blades (Exhibit 17 & 18);

(d)  1 bolt cutter (Exhibit 19);

(e)  5 pliers (Exhibits 9-12 & 14);

(f)  1 metal chain (Exhibit 22);

(g)  1 cutter (Exhibit 13);

(h)  1 metal hook (Exhibit 25);

(i)  1 torch (Exhibit 20);

(j)  1 roll of adhesive tape (Exhibit 21); and

(k)  1 metal plate with holes (Exhibit 16).

11.  Between 3:56 a.m. and 3:59 a.m., PW3 arrested D for “Criminal Damage”, “Attempted Burglary”, “Attempted Theft” and “Going Equipped for Stealing”. No caution was administered due to language barrier. Upon subsequent search of D, some small notes of different currencies were seized.

12.  Upon sweep of the Back Alley, signs of damage on the metal chain and the lightning grounding wire were seen. The CCTV camera was taped with adhesive tape. White adhesive tape and a metal chain with a lock were seized from the scene.

CCTV

13.  CCTV footages captured D lingering at the Back Alley at 8:35 p.m. on 24 January 2025. At 8:37 p.m., D took a blue suitcase out from underneath a table. At 8:39 p.m., D stepped on the storage racks and used a bolt cutter to tamper with the metal chain securing the wooden ladder. D looked up and walked around, examining the walls. D also moved a white container and a piece of wood. At 8:54 p.m., D placed the suitcase inside a storage rack under white canvas. D then got on a bicycle and left.

VRI

14.  Two cautioned VRIs were conducted by WDPC 27763 on 26 January 2025, during which D stated, inter alia, the following: -

(i)  When shown a photo of the grounding Earth Wire along the wall at the Back Alley taken by the police, D stated that he first saw the Earth Wire when he walked past it;

(ii)  At the material time, he tried to cut and pull off the straight black Earth Wire with the seized cutter / pliers but failed;

(iii)  He intended to sell the Earth Wire as he did not have money to buy food; and

(iv)  The seized backpack belonged to his friend Johnny. He used it to store his tools.

Criminal Convictions

15.  D has 4 criminal convictions involving 6 offences, 4 of which were drug related and 1 for “theft”.

16.  D was last sentenced on 10 March 2025 to a total of 5 months imprisonment for 3 charges of “Possession of Dangerous Drug”. He committed the present offences whilst on court bail granted on 18 April 2024 in relation to the drug offences.

Personal Background

17.  D is now 46 years old. He was born in Sri Lanka and educated up to Primary level. He came to Hong Kong in 2006.

18.  D is a Form 8 holder. He married his wife who is a domestic helper in Hong Kong and they have one son who is now 13 years old. The son is currently a secondary school student. The son used to live with D but moved to live with his mother since D’s remand.

Mitigation

19.  The Defence explained to the court that although D’s wife provided a large portion of her salary to support their son, there was still not enough left for D to buy his own food. It was under such circumstances that D committed the present offences.

20.  The Defence also submitted that ever since D’s incarceration, his son was deprived of his primary caregiver and, for that, D regretted a lot for the wrong he had done.

21.  All in all, D has been in custody for around 17 months and is truly remorseful. The Defence urged the court to be lenient in sentencing D so as to allow him to reunite with his wife and son as soon as possible.

22.  In relation to Charge 1, the Defence referred to the English case of R v Brewster & others [1998] 1 Cr App R (S)  181 and submitted that, apart from the fact that the offence occurred in the small hours, none of the aggravating factors were present. Besides, the Defence also cited HKSAR v Khan Asif [2010] 1 HKLRD 404 and suggested that a lower starting point be adopted as D’s attempt to enter the premises was futile and minimal. Moreover, the ladder was there all along and D did not bring it with him to commit the offence.

23.  In relation to Charge 2, the Defence referred to the case of HKSAR v Emran [2012] 3 HKLRD 535 which involved the theft of copper wiring from a church roof and the applicant in that case had with him a bag of tools and a ladder. The Court of Appeal took into account (1)  that the conviction for theft was less serious than burglary and deserving of a lesser sentence; (2)  whilst the applicant had been armed with tools, the value of the wiring was insignificant when compared with the cost for repairs; and (3)  the applicant was an asylum seeker in his mid-30s with no criminal record. In the circumstances, the Court took the view that a sentence of 15 months’ imprisonment was appropriate (after trial).

24.  Given D committed the offence alone, and it was not particularly sophisticated, the Defence asked the court to consider imposing a shorter custodial sentence.

Sentencing considerations

Charge 1

25.  The offence involved an attempted burglary of domestic premises and a starting point of 36 months’ imprisonment is called for.

26.  On the facts of the present case, I find that the offence was well-planned and premeditated as D (1)  had carried out observation at the scene in advance, (2)  brought along a backpack of tools including a bolt cutter, screwdrivers and pliers, to commit the offence and (3)  covered the CCTV camera with adhesive tape to evade detection of his crime.

27.  However, considering the overall circumstances of the offence, including the fact that D’s attempt to enter the premises was futile and minimal, and that he gave up soon after he had slipped on the ladder, I take the view that the usual starting point of 36 months’ imprisonment is sufficient and appropriate.

Form 8

28.  There is an aggravating factor arising from D’s Form 8 status.

29.  In HKSAR v Singh Gursevak [2019] 2 HKLRD 274 which was a robbery case, it was stated that there were two principles underlying the amount of enhancement, namely, denunciation of criminal activity by Form 8 holders, and deterrence of all Form 8 holders from committing crimes while they enjoyed the freedom to live in Hong Kong as they awaited resolution of their claims.

30.  I note that since D’s arrival in Hong Kong in 2006, he had been sentenced on 4 occasions for a total of 6 offences. While D claimed that he had no money for food, his last conviction was for 3 charges of “Possession of Dangerous Drug”. All in all, I take the view that D must be deterred from committing further offences.

31.  Considering the nature of Charge 1, the circumstances under which it was committed and D’s criminal record, I enhance the starting point by 6 months to 42 months’ imprisonment.

Committing offence whilst on court bail

32.  D committed the present offence whilst on court bail, I further enhance the starting point by 3 months to 45 months’ imprisonment.

33.  Taking into account D’s timely plea, his sentence is reduced by 1/3 to 30 months’ imprisonment.

Charge 2

34.  Considering that it was a futile attempt to steal an Earth Wire and the limited damage done to it, I take a starting point of 12 months’ imprisonment.

Form 8

35.  Given D’s Form 8 status, I enhance the starting point by 3 months to 15 months’ imprisonment.

Committing offence whilst on court bail

36.  D committed the present offence whilst on court bail, I further enhance the starting point by 3 months to 18 months’ imprisonment.

37.  Taking into account D’s timely plea, his sentence is reduced by 1/3 to 12 months’ imprisonment.

Totality

38.  Given the proximity both in terms of time and place of the 2 offences, I consider them to be “part and parcel” of a single criminal conduct, I therefore order the sentences on both charges to run concurrent to each other.

Sentence

39.  For Charges 1 and 2, D is sentenced to a total of 30 months’ imprisonment.