A A
DCCC 1001/2018
B [2019] HKDC 689 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 1001 OF 2018 D
____________
E HKSAR E
v
F F
GURUNG VINOD KUMAR
G
____________ G
Before: HH Judge Dufton
H H
Date: 22 May 2019
I
Present: Mr Isaac Guan, PP, of the Department of Justice, I
for HKSAR
Mr Christopher Morley of Morley, Chow, Seto,
J J
assigned by the Director of Legal Aid, for the defendant
Offences: (1) & (2) Theft (盜竊罪)
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(3) Burglary (入屋犯法罪)
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to two charges of theft, contrary to
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section 9 of the Theft Ordinance 1 (charges 1 & 2) and one charge of
O burglary, contrary to section 11 of the Theft Ordinance (charge 3). O
P 2. Full particulars of the offences are set out in the facts admitted P
by the defendant on 16 April 2019. In summary on 9 June and 17 June
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2018 the defendant stole items of underwear from outside two different
R homes in Ma Tin Tsuen, Kung Um Road in Yuen Long (charges 1 & 2). R
S S
T T
1
Cap 210.
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A A
3. Also on 17 June 2018 at about 5:16 a.m. the defendant was
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found inside the covered garden of another home in Ma Tin Tsuen2. The
C defendant immediately ran away. The house owner found some old clothes C
in the covered garden had been searched through but nothing was missing.
D D
The owner also found an iPhone which did not belong to him or his family
E (charge 3). E
F F
4. The defendant was arrested on 11 August 2018. In a record of
G interview and a subsequent video recorded interview the defendant G
admitted, inter alia, that after watching pornography he had a sexual
H H
impulse and stole a bra when he passed by the village houses in Ma Tin
I Tsuen (charge 1); he was riding his bicycle when he stole a pair of I
underpants (charge 2) and at about 5 a.m. one morning he entered a village
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house’s area and looked through the washing machine area because he
K wanted some water to drink. Later the defendant realised he had lost his K
iPhone (charge 3).
L L
M
Mitigation M
N 5. In passing sentence, I have carefully considered the oral and N
written submissions of Mr Morley, including that the defendant is married
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and has a son aged 6, who lives in Nepal.
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6. I take into account that the defendant has a clear record.
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R R
S S
T 2
Before plea was taken I asked to be satisfied that the covered garden is a building. Photographs of T
the house and the covered garden were submitted from which I was satisfied the covered garden is a
building.
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A A
Starting point
B B
C
7. The correct starting point for a single burglary of domestic C
premises committed by a first offender of full age where there are no
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aggravating or mitigating features is 3 years imprisonment.
E E
8. Mr Morley submits that this is not the usual burglary
F motivated by greed and that the offence was opportunistic with a lower risk F
of confrontation whereby the court can depart from the guideline sentence3.
G G
H 9. In Attorney General v Lo Ching Fai the Court of Appeal held H
that exceptional circumstances are required before a defendant can avoid an
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immediate custodial sentence for burglary of domestic premises and that in
J the absence of special circumstances pertaining to the offence or the J
offender a suspended sentence is wrong in principle even where the
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offender has a clear record4.
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10. Mr Morley has referred the court to HKSAR v Tsang Chun Yin
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where the Court of Appeal discussed exceptional circumstances 5 and to
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various sentences imposed in burglary cases, mostly from the District Court, N
including sentences of probation, community service, suspended sentences
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and immediate imprisonment6.
P P
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3
See §6 of the written submission of Mr Morley.
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4
[1996] 2 HKCLR 19.
5
CACC 170/2017 in particular §§44-46 of the reasons for judgment on the application for leave to
S S
appeal.
6
HKSAR v Chi Wing Kin HCMA 683/2000; HKSAR v Woo Kin Yan DCCC 562/2010; HKSAR v Ko
T Chun Ho & another DCCC 593/2010; HKSAR v Law Tsin Hung DCCC 1252/2010; HKSAR v T
Cheung Kam Wing DCCC 67/2013; HKSAR v James Peter Gurnell DCCC 759/2013; and HKSAR v
Chan Tsz Ying DCCC 76/2015.
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A A
Individual justice
B B
C
11. In determining whether there are exceptional circumstances I C
have carefully considered the need for individual justice, as articulated in
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the cases of HKSAR v Leung Pui Shan7 and HKSAR v Yeung Kwun Kuen8,
E cases concerning obtaining money by deception and theft. E
F 12. In Leung Pui Shan the appellant, aged 19, had not set out to F
deceive purely for personal gain, the offences being committed in the midst
G G
of emotional confusion. In Yeung Kwun Kuen, the appellant, aged 21, who
H had been suffering from a long-term mental health problem committed the H
offences close upon the heels of a traumatic event, namely the death of his
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grandmother.
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Reports
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13. In view of the nature of the thefts and the burglary involving
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stealing underwear, I called for a psychological report and a probation
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officer’s report before passing sentence. M
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14. Both reports detail conflicts between the defendant and his
O wife and how he has resorted to indulging in playing video games, O
browsing pornographic websites and occasionally taking marijuana to cope
P P
9
with his stress and negative emotions .
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15. The defendant says he wishes to turn anew and stresses that he
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has stopped browsing pornographic websites; has joined a rehabilitation
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7
[2008] HKC 241.
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8
CACC 475/2012 & 476/2012
9
See §2 of the psychological report and §§2 & 5 of the probation report.
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A A
programme to quit using marijuana and attends church every week and
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practices meditation to enhance his mood coping10.
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16. The defendant’s wife has noticed a positive change in the
D D
defendant’s behaviour since his arrest and is fully supportive of his
E rehabilitation. This positive change has also been noticed by the E
defendant’s peer counsellor from the Memorial Methodist Social Service 11.
F F
17. I am also told by Mr Morley that Miss Yim from Operation
G G
Dawn has attended court today to show her support for the defendant. Miss
H Yim informs Mr Morley that the defendant has been known to Operation H
Dawn since 2014 and that since his arrest he appears more committed
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participating in both the programmes run by Operation Dawn and voluntary
J work12. J
K K
18. The clinical psychologist concludes that the positive
L behavioural change reflected that the defendant was motivated to turn anew. L
The clinical psychologist advises that the defendant receive continual help
M M
to abstain from drugs and recommends psychological intervention to
N enhance his self-awareness, mood coping and problem solving skills13. N
O O
19. In view of the defendant’s remorseful attitude, strong family
P support and concrete rehabilitation plan to tackle his drug problem and P
manage his sex behaviour, the probation officer is of the view that it is
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worth giving the defendant a chance to receive statutory supervision and
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S 10 S
See §4 of the psychological report and §8 of the probation report.
11
See §5 of the psychological report and §9 of the probation report.
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12
Miss Yim is referred to in §8 of the probation report.
13
See §6 of the psychological report.
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A A
recommends 15 months’ probation with special conditions to address the
B B
defendant’s drug and sexual behaviour 14.
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20. Although the defendant is not a young offender he does have a
D D
clear record. I accept this was not the usual burglary of domestic premises
E and that the defendant did not enter the main house, only the covered E
garden annexed to the house. I also note that after his arrest on 11 August
F F
last year the defendant was released on bail after spending 25 days in
G custody. G
H 21. Taking into account the defendant’s personal circumstances H
and the circumstances in which he came to commit the offences, I am
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satisfied this is an exceptional case whereby I can depart from the
J guidelines. J
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22. I am satisfied that having regard to the nature of the offences
L and the character of the defendant it is expedient to make a probation order. L
I will therefore first explain a probation order to the defendant as required
M M
by section 3(4) of the Probation of Offenders Ordinance15.
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23. Having explained a probation order to the defendant and the
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defendant having consented to the making of a probation order, the
P defendant is convicted and sentenced to 15 months’ probation concurrent P
on each charge.
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(D. J. DUFTON)
S District Judge S
T T
14
See §11 of the probation report.
15
Cap 298.
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