HKSAR v. Jarmanjit Singh

DCCC 95/2018

[2019] HKDC 748

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 95 OF 2018

____________

____________

REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of attempted burglary of commercial premises, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2] (charge 1).

2.At the commencement of the trial the defendant pleaded guilty to one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance[3] (charge 2) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance[4] (charge 3).  

3.Full particulars of the offences are set out in my reasons for verdict handed down today and the summary of facts admitted by the defendant on 14 May 2019.

Attempted burglary

4.In summary Flat B on the 2nd Floor of Sui Ying Industrial Building consists of eight subdivided flats, B1-B8 (“Flat B”).  The main entrance of Flat B was a metal gate with an electronic combination lock.  Mr Chiu Chung Kin rented Flat B3 for use as the business office of his company Compact-Tai On Joint Venture Limited (“Flat B3”).  

5.At 8 p.m. on 13 October 2017 Mr Chiu locked the wooden door of Flat B3 and left work. At around 11 p.m. SPC 52778 and PC 22394 went to Flat B to conduct an anti-burglary operation.  After checking all the flats SPC 52778 and PC 22394 positioned themselves in the toilet.  

6.At around 2:58 a.m. on 14 October 2017 SPC 52778 heard the sound of someone pressing the electronic keyboard.  SPC 52778 went to have a look and saw the defendant facing the door of Flat B3.  The defendant was holding two cards in his right hand, one black and one white, which he used to slip inside the gap of the wooden door and at the same time turn the doorknob.   

7.When the defendant noticed the presence of SPC 52778 he immediately ran in the direction of the exit.  SPC 52778 gave chase and stopped the defendant at the lift lobby.  The defendant was arrested.  The two cards were found in the right front pocket of the defendant’s trousers.

Breach of condition of stay

8.The defendant was permitted to remain in Hong Kong until 4 September 2017.  The defendant remained in Hong Kong after that date until his arrest on 14 October 2017. 

Failing to surrender to custody without reasonable cause

9.The court record shows that the defendant was granted court bail for the attempted burglary on 16 October 2017.  The case was transferred to the District Court on 5 February 2018. 

10.The defendant appeared in the District Court on 5 July 2018 when the case was adjourned for mention to 21 August 2018.  The defendant failed to surrender to court on 21 August 2018. 

11.On 9 October 2018 when the defendant applied for a visa extension his wanted status was unveiled.  The defendant was then re-arrested for the attempted burglary. 

Mitigation

12.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Herbert.  I take into account the defendant has no previous convictions. 

Attempted burglary

13.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

14.I am satisfied the starting point is not to be reduced by reason of the fact that the defendant was arrested before succeeding in breaking into Flat B3 and was therefore unable to steal anything.  

15.I find no grounds to reduce the starting point.  The defendant is convicted and sentenced to 2 years and 6 months’ imprisonment. 

Breach of Condition of Stay

16.The defendant had overstayed by just over one month when he was arrested for the attempted burglary. Ms Herbert explains that the defendant had applied for permanent residency and did not realise he needed to extend his visa. 

17.I am satisfied a starting point of 28 days’ imprisonment is appropriate. 

Late plea

18.On 3 January 2019 when the case was set down for trial the defendant indicated a plea of not guilty.  On 6 May 2019 a letter was written to court indicating a change of plea to guilty.  The defendant having only indicated his plea of guilty 8 days prior to trial he is not entitled to a full one third discount. 

19.I am satisfied a discount of 25% is appropriate[5]. The defendant is convicted and sentenced to 21 days’ imprisonment. 

Failing to surrender to custody without reasonable cause

20.Ms Herbert tells the court that the defendant’s mother usually reminds the defendant, however the mother had returned to India and the defendant forgot that he needed to go to court.  Once the defendant realised, about six day later, that he had forgotten to go to court Ms Herbert says he did not know he needed to surrender to court.

21.Taking into account that the defendant was re-arrested when he went to the Immigration Department to extend his visa which was nearly seven weeks after he failed to attend court, I am satisfied that a starting point of 3 months’ imprisonment is appropriate. 

22.Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Totality

23.The three offences are separate and distinct for which consecutive sentences are appropriate[6]. Taking into account totality of sentence I am satisfied that a total sentence of 2 years and 8 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7].    

Sentence

24.The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 6 months’ imprisonment;

Charge 2 – 21 days’ imprisonment; and

Charge 3 – 2 months’ imprisonment;

The sentences on charges 2 & 3 are ordered to be served concurrent to each other and consecutive to charge 1. The total sentence to be served by the defendant is 2 years and 8 months’ imprisonment.