HKSAR v. Singh Sukhchain

DCCC 776/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 776 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Burglary" (Charge 1) and 1 charge of "Attempted Burglary" (Charge 2). In Charge 1, he stole 2 television sets from a residential flat; whereas in Charge 2, he tried to enter a vacant residential flat to steal.

Summary of Facts

Charge 1

2.Madam NG (PW1) is the owner of 2^nd Floor, No.482 Chatham Road North, Hung Hom ("the Flat").  She left Hong Kong in October 2015.

3.On 10 February 2016, PW1 returned to the Flat and found the metal gate having been prized.  Two television sets (total value:  $8,000) were missing.  An empty Vitasoy box, which was not present in the Flat when PW1 last checked, was found inside the washroom.

4.Fingerprints were found on the Vitasoy box and the edge of the Flat's metal gate.  After examination, they were found to be from the defendant's right forefinger and left thumb respectively.

Charge 2

5.In the afternoon on 7 July 2016, patrolling police officers heard some sound coming from the 6^th Floor, No.16 Whampoa Street, Hung Hom.  Soon they found the defendant outside a vacant flat with its door open.  Although prizing marks were found on the door, a watchman of the building confirmed that the lock of that door was already damaged before that day, and that the building was mostly vacant.

6.No valuable properties were found at the premises.  When the defendant was intercepted, a pair of scissors, a hammer and an ice pick were found near him on the floor.  In his video recorded interview, the defendant admitted that he was outside the premises looking for something useful, but did not find anything.

Mitigation & Sentence

7.The defendant is 39 and married with 2 daughters. He has 6 conviction records, all of which are theft-related offences (including 1 "Burglary" offence). Defence solicitor Mr. Gopaoco informed me that the defendant immigrated to Hong Kong from India in 1997. He is unemployed and his wife is a homemaker; they rely on social welfare in the sum of $9,000 per month.

8.In mitigation, Mr. Gopaoco submitted that the defendant went to the premises in relation to Charge 1 in December 2015. He found the Flat unattended, so he took away 2 television sets. Regarding Charge 2, Mr. Gopaoco submitted that the tools which were lying on the floor were found by the defendant inside the premises and he decided to take them with him. He suddenly heard noises and discarded them on the floor. Mr. Gopaoco stressed that on either occasion, no one was alarmed or put in fear by the defendant's presence.

9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The defendant managed to behave himself during his first 10 years in Hong Kong. He began to transgress the law in 2008. I do not know what went wrong, but whatever happened, he cannot and must not resort to stealing as the solution to his problems. He has been living in the territory long enough to know how to seek help.

13.The normal starting point for domestic burglary is 3 years' imprisonment. The defendant is clearly a repeated offender of theft-related offences. I have all the reasons to raise the starting point for the purpose of deterrence, but I have decided not to do so and to give him one last chance.

14.For Charge 1, although no one was at the Flat for an extended period of time, it was still PW1's home and warranted adequate protection under the law. I adopt 3 years' imprisonment as the starting point. With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment for this charge.

15.For Charge 2, there is evidence showing that the building was mostly vacant, and that the door of the premises in question was open. I consider the matter an "opportunistic burglary". On this basis, I adopt of a starting point of 2.5 years' imprisonment instead. With the guilty plea, the sentence is reduced to 20 months. I sentence the defendant to 20 months' imprisonment for this charge.

16.Bearing in mind the totality principle, I consider a global starting point of 3.5 years to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 28 months. Hence, I order 4 months in Charge 2 to run consecutive to Charge 1; thereby arriving at a total prison term of 28 months.