A A
DCCC 729/2022
[2024] HKDC 777
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 729 OF 2022 C
D
---------------------- D
HKSAR
E E
v
F GHALE Dil Raj F
G ---------------------- G
Before: HH Judge Stanley Chan
H Date: 29 April 2024 H
Present: Mr Chase C M Pun, counsel on fiat, for HKSAR
Mr Mohammed Jawadullah Shah, instructed by Robertsons,
I assigned by DLA, for the defendant I
Offence: (1) Burglary (入屋犯法罪)
J (3) Criminal intimidation (刑事恐嚇) J
(4) Failing to surrender to custody without reasonable
cause (無合理因由而沒有按照法庭的指定歸押)
K K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. The defendant was charged with one count of burglary
O (Charge 1) with the alternative count of criminal damage (Charge O
2), one count of criminal intimidation (Charge 3), and one count
P P
of failing to surrender to custody under s.9L of the Criminal
Procedure Ordinance (Charge 4). He pleaded guilty to Charges 1,
Q Q
3 and 4, and was convicted accordingly.
R R
The summary of facts
S S
2. PW1 Wang was a property agent of King Lung Property
T T
Agency located at Shop A, 174 Shanghai Street, Yau Ma Tei (the
shop). PW1 was authorised by the owner of Office B, 1st floor, Kam
U U
CRT32/29.4.2024/MD 1 DCCC 729/2022(1)/Sentence
V V
A A
Yin Mansion, Woosung Street, Yau Ma Tei (the Premises) to handle
B all matters in relation to the Premises. B
C The rental of Room A of the Premises to D’s girlfriend C
3. There was a metal gate to the entrance of the Premises
D and a wooden door to the entrance of Room A of the Premises. The D
gate was usually closed and could only be opened with a key.
E E
F 4. On 7 July 2021, PW1 let out Room A of the Premises to F
the defendant’s girlfriend, called Gurung, and gave her the keys
G to the door and the gate. Since 7 October 2021, Gurung has G
defaulted on rent. On 24 December 2021, PW1 applied for recovery
H H
of vacant possession of Room A of the Premises.
I I
Recovery of vacant possession of Room A of the Premises
J 5. On 29 April 2022, PW1 recovered vacant possession of J
Room A of the Premises from the defendant and Gurung, with the
K assistance of 4 bailiffs and some police officers. A notice for K
the recovery of vacant possession of the Premises was shown and
L L
explained to the defendant in Punti and English. PW1 also changed
M the locks of the door at the costs of HK$500 in the presence of M
the defendant. Further, PW1 reminded the defendant that he and
N Gurung could not return to the Premises. N
O O
Charge 1
6. On 1 May 2022 at around 14:30 hours, PW1 inspected the
P P
Premises and discovered that the gate was open while the lock of
Q the door was removed. He immediately called the police. Q
R 7. At around 14:45 hours, PC8962 (PW2) arrived at the R
Premises and made enquiries with PW1. PW2 found the defendant and
S S
Gurung in Room A of the Premises with a broken lock on the floor.
T PW1 informed PW2 that the broken lock was the same lock which PW1 T
had installed on the door on 29 April 2022.
U U
CRT32/29.4.2024/MD 2 DCCC 729/2022(1)/Sentence
V V
A A
8. The defendant told PW2 in Punti that the house belonged
B to him and that he had broken the lock because he could not enter B
the same. In Chinese words it is “間屋係我嘅，我入唔到嚟咪整爛個鎖” .
C C
PW2 thus arrested the defendant for criminal damage.
D 9. In his first cautioned statement dated 1 May 2022 taken D
in the presence of the interpreters, the defendant admitted, inter
E E
alia:-
F (a) He and his girlfriend Gurung used to live in Room F
A of the Premises.
G G
(b) On 30 April 2022, it was raining outside. He was
H H
tired and wanted to return to Room A of the
Premises. At around 11 pm, he broke the lock of
I I
the door with a stick that he found at the
J staircase. J
K (c) After he had broken the lock, Gurung arrived at the K
Premises to rest and sleep.
L L
M Charge 3 M
10. On 4 May 2022 at around midnight, PW1 was in the Shop
N when the defendant showed up and asked PW1 to return to him the N
keys to the Premises as they lived there. PW1 refused to give the
O O
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
P P
(in Chinese, “你再報警，我整死你”). PW1 was scared as he was worried
Q that the defendant would injure him. However, the defendant left Q
the scene before PW1 could call the police.
R R
11. At around 17:00 hours on the same day, PW1 returned to
S S
the Premises and saw the defendant there. PW1 immediately called
T the police. At around 18:15 hours, PC6819 (PW4) arrived at the T
scene and found PW1 and the defendant. After making inquiries,
U PW4 arrested the defendant for criminal intimidation. U
CRT32/29.4.2024/MD 3 DCCC 729/2022(1)/Sentence
V V
A A
12. Under caution, the defendant claimed to have said the
B wrong thing out of the slip of the tongue (in Chinese, “唔好意思阿 B
Sir，我一時口快快講錯嘢”). The defendant later confirmed his verbal
C C
admission in his second cautioned statement dated 4 May 2022 in
the presence of interpreters.
D D
E Charge 4 E
13. The defendant first appeared in the Kowloon City
F Magistrates’ Court for the present case on 6 May 2022. The case F
was transferred to the District Court. The defendant was granted
G G
bail in the District Court on 1 November 2022. The defendant
pleaded not guilty to Charges 1 to 3, and the case was therefore
H H
set down for trial from 4 to 6 October 2023.
I I
14. On 4 October 2023, the first day of trial, the defendant
J J
failed to appear in court. The defendant informed the court
through his legal representative that he had to seek medical
K K
treatment at Kwong Wah Hospital. The case was adjourned to 5
L October 2023. On that day, the defendant’s legal representative L
told the court that the defendant became unreachable, and the
M defendant did not attend court that day. A warrant of arrest was M
issued against the defendant.
N N
15. On 28 October 2023, the police intercepted the defendant
O O
during patrol and re-arrested him. On 29 October 2023, a cautioned
P interview was conducted with the defendant for the offence of P
failing to surrender to custody as appointed by court. The
Q Q
defendant stated under caution, inter alia, that:
R R
(a) He was sick on 4 October 2023. He went to Kwong
S Wah Hospital to seek medical treatment. However, S
the waiting time was too long, and he attended QEH
T in the end; and T
U U
CRT32/29.4.2024/MD 4 DCCC 729/2022(1)/Sentence
V V
A A
(b) He was also sick on 5 October 2023. He sought
B medical treatment at a private clinic in Jordan. B
He did not inform anyone that he was sick on the
C C
day.
D D
Mitigation
E 16. Defence counsel prepared a mitigation bundle dated E
24 April 2024. The defendant, aged 49, was born in April 1974 in
F Hong Kong. He is a Hong Kong resident. The defendant moved back F
to Nepal with his family when the defendant was one year old. He
G G
received education up to the secondary level. In 1997, the
defendant returned to Hong Kong by himself. The defendant is
H H
single and met his girlfriend in 2013. They resided in the
I Premises in question as of July 2021. The defendant was a causal I
worker and a CSSA recipient. The defendant had been granted bail
J J
on and off (see paragraph 12 of the mitigation) but has been in
custody since 28 October 2023.
K K
L 17. Regarding the burglary charge (Charge 1), it was L
submitted that the unusual feature of this case is that the
M defendant was the former resident of the Premises. He was evicted M
by the landlord. Shortly after that, the defendant and his
N N
girlfriend returned to the Premises claiming that they were taking
shelter. Their personal property remained in the Premises. The
O O
defendant only damaged the lock to gain entry.
P P
18. Defence counsel mentioned that attempts to plea bargain
Q Q
regarding Charges 1 and 2 failed on previous occasions. The
defendant had already indicated that he would plead guilty to
R R
Charge 2.
S S
19. As regards Charge 3, it was submitted that the offence
T was a short-lived and one-off incident. The defendant left soon T
after making the threat and no force was involved.
U U
CRT32/29.4.2024/MD 5 DCCC 729/2022(1)/Sentence
V V
A A
20. For the absconding offence (Charge 4), it was submitted
B that the length of time before the defendant was re-arrested was B
23 days. It was said, the defendant has been in custody for 33
C C
months already (paragraph 31 of the mitigation).
D D
21. Defence counsel said the defendant is not a drug
E dependent now. He is willing to compensate, but he has financial E
constraint at the moment.
F F
Sentence
G G
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
H H
in 1997. However, it is obvious that the defendant did not
I treasure what he got in Hong Kong and his conviction record I
commenced in October 2006. He has a total of 7 convictions. He
J J
had been sent to DATC because of his theft convictions back in
2018. I was told that the defendant has an outstanding case
K K
involving injecting a dangerous drug when he was arrested in June
L 2023. L
M 23. Plea bargain had been made but it was rejected by the M
prosecution on 3 occasions. Legally speaking, the defendant cannot
N N
be said to indicate his pleas at the earliest opportunity. That
said, given the special feature of this case and the history of
O O
the proceedings, I am prepared to give the defendant a full one-
P third discount in sentence. As the defendant has been in custody P
for nearly 33 months, as mentioned by the Defence, it is likely
Q Q
that the defendant could be discharged from prison before long,
barring any unforeseen circumstances.
R R
S 24. Regarding Charge 1, in normal circumstances, an offence S
of burglary involving domestic premises will attract a starting
T point of 3 years. But in the present case, the defendant was T
gaining entry into his former residence illegally by breaking the
U U
lock. He had his personal property in the premises. In these
CRT32/29.4.2024/MD 6 DCCC 729/2022(1)/Sentence
V V
A A
exceptional circumstances, I will take a lenient stance and adopt
B a starting point of 12 months. With his plea, the sentence is B
reduced to 8 months.
C C
25. For the offence of criminal intimidation, I see the
D D
incident as a kind of emotional outburst without concrete intention
E to harm PW1. I accepted that this could be regarded as a one-off E
incident. It can be taken as a minor offence. I intended to
F impose a fine, but eventually decided to adopt a starting point of F
3 weeks and with his plea, the sentence is reduced to 2 weeks.
G G
These 2 sentences are to be served concurrently.
H H
26. For Charge 4, it is a separate offence with a different
I nature, an offence committed by the defendant foolishly. I adopt I
a starting point of 4.5 months and with his plea, the sentence is
J J
reduced to 3 months. This sentence is to be served consecutively
to the other sentences.
K K
L 27. That means, the defendant is sentenced to a total of an L
imprisonment term of 11 months. As far as this case is concerned,
M with this sentence, it is likely that the defendant will be M
released soon.
N N
O O
P P
(Stanley Chan)
Q Q
District Judge
R R
S S
T T
U U
CRT32/29.4.2024/MD 7 DCCC 729/2022(1)/Sentence
V V
A A
DCCC 729/2022
[2024] HKDC 777
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 729 OF 2022 C
D
---------------------- D
HKSAR
E E
v
F GHALE Dil Raj F
G ---------------------- G
Before: HH Judge Stanley Chan
H Date: 29 April 2024 H
Present: Mr Chase C M Pun, counsel on fiat, for HKSAR
Mr Mohammed Jawadullah Shah, instructed by Robertsons,
I assigned by DLA, for the defendant I
Offence: (1) Burglary (入屋犯法罪)
J (3) Criminal intimidation (刑事恐嚇) J
(4) Failing to surrender to custody without reasonable
cause (無合理因由而沒有按照法庭的指定歸押)
K K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. The defendant was charged with one count of burglary
O (Charge 1) with the alternative count of criminal damage (Charge O
2), one count of criminal intimidation (Charge 3), and one count
P P
of failing to surrender to custody under s.9L of the Criminal
Procedure Ordinance (Charge 4). He pleaded guilty to Charges 1,
Q Q
3 and 4, and was convicted accordingly.
R R
The summary of facts
S S
2. PW1 Wang was a property agent of King Lung Property
T T
Agency located at Shop A, 174 Shanghai Street, Yau Ma Tei (the
shop). PW1 was authorised by the owner of Office B, 1st floor, Kam
U U
CRT32/29.4.2024/MD 1 DCCC 729/2022(1)/Sentence
V V
A A
Yin Mansion, Woosung Street, Yau Ma Tei (the Premises) to handle
B all matters in relation to the Premises. B
C The rental of Room A of the Premises to D’s girlfriend C
3. There was a metal gate to the entrance of the Premises
D and a wooden door to the entrance of Room A of the Premises. The D
gate was usually closed and could only be opened with a key.
E E
F 4. On 7 July 2021, PW1 let out Room A of the Premises to F
the defendant’s girlfriend, called Gurung, and gave her the keys
G to the door and the gate. Since 7 October 2021, Gurung has G
defaulted on rent. On 24 December 2021, PW1 applied for recovery
H H
of vacant possession of Room A of the Premises.
I I
Recovery of vacant possession of Room A of the Premises
J 5. On 29 April 2022, PW1 recovered vacant possession of J
Room A of the Premises from the defendant and Gurung, with the
K assistance of 4 bailiffs and some police officers. A notice for K
the recovery of vacant possession of the Premises was shown and
L L
explained to the defendant in Punti and English. PW1 also changed
M the locks of the door at the costs of HK$500 in the presence of M
the defendant. Further, PW1 reminded the defendant that he and
N Gurung could not return to the Premises. N
O O
Charge 1
6. On 1 May 2022 at around 14:30 hours, PW1 inspected the
P P
Premises and discovered that the gate was open while the lock of
Q the door was removed. He immediately called the police. Q
R 7. At around 14:45 hours, PC8962 (PW2) arrived at the R
Premises and made enquiries with PW1. PW2 found the defendant and
S S
Gurung in Room A of the Premises with a broken lock on the floor.
T PW1 informed PW2 that the broken lock was the same lock which PW1 T
had installed on the door on 29 April 2022.
U U
CRT32/29.4.2024/MD 2 DCCC 729/2022(1)/Sentence
V V
A A
8. The defendant told PW2 in Punti that the house belonged
B to him and that he had broken the lock because he could not enter B
the same. In Chinese words it is “間屋係我嘅，我入唔到嚟咪整爛個鎖” .
C C
PW2 thus arrested the defendant for criminal damage.
D 9. In his first cautioned statement dated 1 May 2022 taken D
in the presence of the interpreters, the defendant admitted, inter
E E
alia:-
F (a) He and his girlfriend Gurung used to live in Room F
A of the Premises.
G G
(b) On 30 April 2022, it was raining outside. He was
H H
tired and wanted to return to Room A of the
Premises. At around 11 pm, he broke the lock of
I I
the door with a stick that he found at the
J staircase. J
K (c) After he had broken the lock, Gurung arrived at the K
Premises to rest and sleep.
L L
M Charge 3 M
10. On 4 May 2022 at around midnight, PW1 was in the Shop
N when the defendant showed up and asked PW1 to return to him the N
keys to the Premises as they lived there. PW1 refused to give the
O O
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
P P
(in Chinese, “你再報警，我整死你”). PW1 was scared as he was worried
Q that the defendant would injure him. However, the defendant left Q
the scene before PW1 could call the police.
R R
11. At around 17:00 hours on the same day, PW1 returned to
S S
the Premises and saw the defendant there. PW1 immediately called
T the police. At around 18:15 hours, PC6819 (PW4) arrived at the T
scene and found PW1 and the defendant. After making inquiries,
U PW4 arrested the defendant for criminal intimidation. U
CRT32/29.4.2024/MD 3 DCCC 729/2022(1)/Sentence
V V
A A
12. Under caution, the defendant claimed to have said the
B wrong thing out of the slip of the tongue (in Chinese, “唔好意思阿 B
Sir，我一時口快快講錯嘢”). The defendant later confirmed his verbal
C C
admission in his second cautioned statement dated 4 May 2022 in
the presence of interpreters.
D D
E Charge 4 E
13. The defendant first appeared in the Kowloon City
F Magistrates’ Court for the present case on 6 May 2022. The case F
was transferred to the District Court. The defendant was granted
G G
bail in the District Court on 1 November 2022. The defendant
pleaded not guilty to Charges 1 to 3, and the case was therefore
H H
set down for trial from 4 to 6 October 2023.
I I
14. On 4 October 2023, the first day of trial, the defendant
J J
failed to appear in court. The defendant informed the court
through his legal representative that he had to seek medical
K K
treatment at Kwong Wah Hospital. The case was adjourned to 5
L October 2023. On that day, the defendant’s legal representative L
told the court that the defendant became unreachable, and the
M defendant did not attend court that day. A warrant of arrest was M
issued against the defendant.
N N
15. On 28 October 2023, the police intercepted the defendant
O O
during patrol and re-arrested him. On 29 October 2023, a cautioned
P interview was conducted with the defendant for the offence of P
failing to surrender to custody as appointed by court. The
Q Q
defendant stated under caution, inter alia, that:
R R
(a) He was sick on 4 October 2023. He went to Kwong
S Wah Hospital to seek medical treatment. However, S
the waiting time was too long, and he attended QEH
T in the end; and T
U U
CRT32/29.4.2024/MD 4 DCCC 729/2022(1)/Sentence
V V
A A
(b) He was also sick on 5 October 2023. He sought
B medical treatment at a private clinic in Jordan. B
He did not inform anyone that he was sick on the
C C
day.
D D
Mitigation
E 16. Defence counsel prepared a mitigation bundle dated E
24 April 2024. The defendant, aged 49, was born in April 1974 in
F Hong Kong. He is a Hong Kong resident. The defendant moved back F
to Nepal with his family when the defendant was one year old. He
G G
received education up to the secondary level. In 1997, the
defendant returned to Hong Kong by himself. The defendant is
H H
single and met his girlfriend in 2013. They resided in the
I Premises in question as of July 2021. The defendant was a causal I
worker and a CSSA recipient. The defendant had been granted bail
J J
on and off (see paragraph 12 of the mitigation) but has been in
custody since 28 October 2023.
K K
L 17. Regarding the burglary charge (Charge 1), it was L
submitted that the unusual feature of this case is that the
M defendant was the former resident of the Premises. He was evicted M
by the landlord. Shortly after that, the defendant and his
N N
girlfriend returned to the Premises claiming that they were taking
shelter. Their personal property remained in the Premises. The
O O
defendant only damaged the lock to gain entry.
P P
18. Defence counsel mentioned that attempts to plea bargain
Q Q
regarding Charges 1 and 2 failed on previous occasions. The
defendant had already indicated that he would plead guilty to
R R
Charge 2.
S S
19. As regards Charge 3, it was submitted that the offence
T was a short-lived and one-off incident. The defendant left soon T
after making the threat and no force was involved.
U U
CRT32/29.4.2024/MD 5 DCCC 729/2022(1)/Sentence
V V
A A
20. For the absconding offence (Charge 4), it was submitted
B that the length of time before the defendant was re-arrested was B
23 days. It was said, the defendant has been in custody for 33
C C
months already (paragraph 31 of the mitigation).
D D
21. Defence counsel said the defendant is not a drug
E dependent now. He is willing to compensate, but he has financial E
constraint at the moment.
F F
Sentence
G G
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
H H
in 1997. However, it is obvious that the defendant did not
I treasure what he got in Hong Kong and his conviction record I
commenced in October 2006. He has a total of 7 convictions. He
J J
had been sent to DATC because of his theft convictions back in
2018. I was told that the defendant has an outstanding case
K K
involving injecting a dangerous drug when he was arrested in June
L 2023. L
M 23. Plea bargain had been made but it was rejected by the M
prosecution on 3 occasions. Legally speaking, the defendant cannot
N N
be said to indicate his pleas at the earliest opportunity. That
said, given the special feature of this case and the history of
O O
the proceedings, I am prepared to give the defendant a full one-
P third discount in sentence. As the defendant has been in custody P
for nearly 33 months, as mentioned by the Defence, it is likely
Q Q
that the defendant could be discharged from prison before long,
barring any unforeseen circumstances.
R R
S 24. Regarding Charge 1, in normal circumstances, an offence S
of burglary involving domestic premises will attract a starting
T point of 3 years. But in the present case, the defendant was T
gaining entry into his former residence illegally by breaking the
U U
lock. He had his personal property in the premises. In these
CRT32/29.4.2024/MD 6 DCCC 729/2022(1)/Sentence
V V
A A
exceptional circumstances, I will take a lenient stance and adopt
B a starting point of 12 months. With his plea, the sentence is B
reduced to 8 months.
C C
25. For the offence of criminal intimidation, I see the
D D
incident as a kind of emotional outburst without concrete intention
E to harm PW1. I accepted that this could be regarded as a one-off E
incident. It can be taken as a minor offence. I intended to
F impose a fine, but eventually decided to adopt a starting point of F
3 weeks and with his plea, the sentence is reduced to 2 weeks.
G G
These 2 sentences are to be served concurrently.
H H
26. For Charge 4, it is a separate offence with a different
I nature, an offence committed by the defendant foolishly. I adopt I
a starting point of 4.5 months and with his plea, the sentence is
J J
reduced to 3 months. This sentence is to be served consecutively
to the other sentences.
K K
L 27. That means, the defendant is sentenced to a total of an L
imprisonment term of 11 months. As far as this case is concerned,
M with this sentence, it is likely that the defendant will be M
released soon.
N N
O O
P P
(Stanley Chan)
Q Q
District Judge
R R
S S
T T
U U
CRT32/29.4.2024/MD 7 DCCC 729/2022(1)/Sentence
V V