HKSAR v. Sodhi Gurdas Singh

DCCC 164/2018

[2018] HKDC 822

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2018

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REASONS FOR SENTENCE

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1.The defendant (Indian male) (aged 32 years) appeared before me this morning and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The particulars of offence avers that the defendant, between 26 July 2017 and 27 July 2017, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, No 20 Bulkeley Street, Hung Hom, Hong Kong, stole therein one Fung Shui ornament, one copper metal pipe, and cash of HK$500.

Facts

3.According to the amended summary of facts, the defendant is a Form 8 holder but his non-refoulement claim has been withdrawn on 26 July 2016, which is exactly one year before the offence date.

4.The burgled premises is the office of two legislative councillors situated at Hung Hom.  It has both a main entrance and a rear entrance, and the rear entrance leads to a back alley and there is a CCTV camera at the main entrance in the office.

5.In about 10 days before the incident, a staff of the office had already discovered that there is a hole in the ceiling at the back of the office.  The hole was about 1m x 0.5m.  The other side of the hole is an outdoor area where people can access the area by climbing up from the back alley.

6.On 27 July 2017, in the morning, when a staff of the office came back to the office, he found that the office had been ransacked, with three properties missing from the office, and they are:-

(1) a fung shui ornament, at a value of about $500;

(2) a copper metal pipe from the office’s toilet sink, of unknown value, but repairing the sink costed about HK$200; and

(3) HK$500 cash.

7.The staff also found that there were some items left in the office which were not there before and one of which is a bottle of water near the office drinking machine.

8.The course of the burglary was captured by the office CCTV, in which a male had been seen walking around the office at about 11:22 pm on 26 July 2017.  The male then placed a ladder near the office entrance between 11:37 pm and 11:38 pm.  The defendant, whose appearance matched the male appearing in the CCTV footage, was subsequently arrested by the police in Mong Kok area on 7 August 2017.

9.A video recorded interview was subsequently conducted with the defendant following his arrest and, under caution, he admitted that on 27 July 2017 he had been to Hung Hom and that he had lived in parks and eats free food from a Sikh temple and he has no money and does not have any expenses.

10.A government chemist subsequently examined the bottle left in the office and, comparing with the DNA obtained from the bottle opening and the inner surface of its screw cap, the government chemist concluded that the DNA on the bottle could have originated from the defendant.

11.The defendant admitted that he entered the office as a trespasser and stole the property as listed in the charge.

Criminal records and the background of the defendant

12.The defendant was born in India and in the past he had been brought to the courts of Hong Kong on no less than four occasions, involving six criminal records.  There is one similar offence of going equipped for stealing in 2016, for which he has been given 4 months’ imprisonment in the Eastern Magistracy.

13.The defendant, according to his antecedent statement, had received education up to Form 4 level in India.  At the time of the offence, he was unemployed.  His family members are all in India, including the mother and the siblings.

14.His lawyer informed the court that the defendant first came to Hong Kong in 2013 legally as a visitor but he overstayed and became a Form 8 holder in Hong Kong.

15.His lawyer accepted that this was a burglary of non-domestic premises and the defendant fully understood that he would be facing a starting point of no less than 30 months’ imprisonment.

16.His lawyer, however, emphasised the fact that at the time of the offence it was not a planned burglary.  The hole in the ceiling already existed for quite some time before the offence.  The defendant was at the time just passing the back alley and noticed that there was an opportunity.  He had no food and no money and therefore tried to get inside the office to see if there was anything worth stealing in order to buy some food.

17.I have already warned the defence that there is an aggravating factor in this case, mainly because of the fact that the defendant himself is a Form 8 holder and also the fact that he had jumped the bail issued by the Immigration Authority after he had already withdrawn his non-refoulement claim.

18.The Court of Appeal had repeatedly reminded the sentencing court that there is a consistent line of authority to the effect that if a non-refoulement claimant, who was permitted to remain in Hong Kong and be at liberty while his claim is being determined by the authorities, engaged in a crime and committed an offence, it will be treated as a serious matter, because this is a factor capable of aggravating the seriousness of his offence[1].

19.In sentencing, I remind myself that the usual starting point for a non-domestic burglary is 30 months but the Court of Appeal has said that this is only applicable to a person of a clear record.  In the defendant’s case, I notice that he has previous records but I accept that those are not burglary records, albeit there is a record involving dishonesty.

20.Although his lawyer had reassured the court that he is not trying to argue that the defendant should be given a somewhat lower starting point, I still regard that this is an opportunistic crime, for which I think it is only just and proper to give the defendant a lower starting point.

21.To that extent, I will therefore lower the starting point from the usual 30 months to 27 months.

22.However, as I said earlier, there are aggravating factors because of the fact that, firstly, the defendant being a Form 8 holder committed the offence while given liberty in Hong Kong, and, secondly, he also jumped bail and committed this offence whilst on bail. 

23.As a result, I consider a further 6 months has to be added.  In the end, the proper starting point in this case is 33 months’ imprisonment.

24.The defendant pleaded guilty for which he would be given the full one-third discount for his timely plea.

25.In the end, the defendant is sentenced to 22 months’ imprisonment.