HKSAR v. Amritpal Singh and Another

DCCC 1025/2018

[2019] HKDC 911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1025 OF 2018

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REASONS FOR SENTENCE

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1.The 1^st and 2^nd defendants pleaded guilty to one charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

BRIEF FACTS

2.At around 2:00 am on 26 September 2018 at Thai Cheong Hotel, 3^rd Floor, May Ming Mansion, No. 312 Nathan Road, Yau Ma Tei, Kowloon, Hong Kong (“Hotel”), PW1 Jiang Xiaohua, a staff member of the Hotel was sleeping on a bed in the staff area of the reception counter of the Hotel.

3.At around 3:45 am, PW1 was woken up by some noises and saw the 1^st defendant inside the staff area and using his hand to take away a tablet computer (“Tablet”) from the reception table.  The Tablet was valued at about HK$1,000.  PW1 shouted at the 1^st defendant immediately and the 1^st defendant escaped with the Tablet.  The matter was reported to the police.

4.Having reviewed the CCTV images on the Ground Floor and the 3^rd Floor of May Ming Mansion, the 1^st and 2^nd defendants were captured entering May Ming Mansion together.  The 1^st defendant then entered the Hotel from the rear staircase.  The 1^st defendant entered the staff area and took away the Tablet.  The 1^st defendant then placed the Tablet into the bag that he was carrying and escaped.

5.CCTV images also captured the 2^nd defendant staying at the rear staircase on the 3^rd Floor of May Ming Mansion whilst the 1^st defendant entered the Hotel.  The 2^nd defendant prevented the door between the Hotel and the rear staircase from closing, which apparently was to allow the 1^st defendant easy access to the escape route.  The 1^st and 2^nd defendants then left May Ming Mansion hastily with the Tablet.

6.The 1^st and 2^nd defendants were arrested by the police two days later on 28 September 2018 for Theft.  In the subsequent cautioned interview and video recorded interview, the 1^st defendant admitted that he stole the Tablet from the Hotel.  He stole it from the staff area where PW1 was asleep.  The 1^st defendant stole the Tablet at the request of the 2^nd defendant.

7.At all material times, the Staff Area was a room in the Hotel with no door.  It had a window used for registration purposes.  Personal belongings of staff members and cash revenue of the Hotel were stored therein.  Only staff members of the Hotel were authorized to enter the Staff Area.

8.At the material times, the 1^st and 2^nd defendants were Form 8 holders.

MITIGATION

Personal background of the defendants and criminal records

9.Mr Tracy, counsel for the 1^st defendant in his mitigation submitted that the 1^st defendant is 31 years old and single.  He left India and came to Hong Kong in 2008 claiming that he feared religious prosecution due to his change in faith from Sikhi.  His elderly parents and two elderly brothers are still living in India.

10.The 1^st defendant had five previous criminal convictions, two of which were theft offences, which Mr Tracy asked me not to consider them as similar convictions for the present sentencing purpose.

11.The 1^st defendant was last discharged from prison on 19 June 2017, in which case, he committed the present offence about 15 months after his discharge.

12.Mr Davis, counsel for the 2^nd defendant in mitigation submitted that the 2^nd defendant is 39 years old and single.  He has been residing in Hong Kong since 2007.  Prior to coming to Hong Kong, the 2^nd defendant worked in the family business in India.  He has one elder and one younger brother, both running the family business in India and a construction business in Canada respectively. 

13.The 2^nd defendant had five previous criminal convictions, one of which was a theft offence and the most recent one was a burglary offence.

14.The 2^nd defendant was last discharged from prison on 19 October 2017, in which case, he committed the present offence just under a year after his discharge.

Domestic or non-domestic burglary

15.Both Mr Tracy and Mr Davis urged me to sentence both defendants on the basis that this was a non-domestic burglary which attracted a lower starting point of 2½ year imprisonment terms.

16.It was their submissions that although the incident happened at a Hotel, the burgled act took place at the reception area of the Hotel, which they submitted was not part of the Hotel.  They urged me to differentiate between the area which the hotel guests stayed ( which made it a domestic burglary ) and the reception area which the hotel staff worked, and in this case, also served as a staff quarters ( which was separated from the Hotel and became a non-domestic burglary ).

17.Further, they also submitted that what the 1^st defendant’s action of entering into the hotel, sneaking into the reception area and taking the Tablet was akin to an opportunistic burglary.

REASONS FOR SENTENCE

18.I do not agree with counsel for the 1^st and 2^nd defendants that this is a case of non-domestic burglary.

19.In the case of HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, at paragraphs 27 and 28:-

“27. The judge, in adopting a sentence of 3 years for the charge of burglary took the view that hotel room should be categorized as domestic premises for sentencing purpose. He said:

‘It is true that a hotel is not a home- it is different from people’s room- and also true that the guests have to pay for their accommodation, so that they are commercial in that sense. However, in my view, the hotel has more in common with domestic premises than non-domestic premises for the purposes of sentencing and the purposes of the guidelines. A hotel is after all intended to be a “home away from home” for travellers, and the victims were sleeping in what they thought was the security and safety and comfort of their own bedroom at the time, which is quite different from commercial premises in the normal sense of that term.’

28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expect to be occupied.”

20.The prosecutions provided me with a photo album and photographs 6 and 7 showed the setting of the Hotel at the 3^rd Floor of May Ming Mansion. It is clear that the reception area and the guest bedrooms are situated at the same corridor on the 3^rd Floor of the Hotel and in close proximity to each other.  It will be artificial to distinguish the reception area as a separate part of the Hotel, thus rendering it non-domestic in nature.  Further, the reception area also served as a staff area for staff like PW1 to rest and sleep and for them to place their personal belongings and for cash revenue for the Hotel to be stored.

21.It would be equally frightening for the staff member staying in the reception area in the early hours, to be confronted with strangers invading their privacy.

Sentence

22.The burglary was committed by two persons, the 1^st defendant as the perpetrator of the crime and the 2^nd defendant as the lookout. 

23.The present offence was not the worst of its kind and taking into consideration all matters, including the mitigation submitted on behalf of both counsel, I adopted a starting point of 3 years’ imprisonment for domestic burglary and an enhancement of 3 months for the defendants being Form 8 holders.

24.I give a full one third discount for their guilty plea at the first available opportunity and sentenced the 1^st and 2^nd defendants each for 26 months’ imprisonment.