HKSAR v. Manpreet Singh and Another

DCCC 283/2018

[2019] HKDC 1069

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2018

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Reasons for Sentence

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1.The defendants each pleaded guilty to joint charges of burglary and theft. The basis of the facts is that the burglary occurred at a premises which was a flat under renovation in Shanghai Street and the theft appeared to have occurred as the burglars were departing from the burglary site on an adjacent premises, whereby some copper pipe was pulled off a wall. What was recovered in the burglary was electric wiring and what was, as I said, recovered in the theft was the copper piping along the wall.

2.A slightly more detailed consideration of this is the offence was committed on 13 February 2018 at a premises in Shanghai Street.  The 1st defendant was observed climbing into what was the balcony of one of the premises and then he would be able to enter the rear entrance of the other premises in Shanghai Street.  The 2nd defendant was seen to follow him some 15-odd minutes later.  They were both seen to leave the premises carrying nylon bags and then they were formally arrested and cautioned.

3.The additional fact in respect of the 1st defendant is that he is a Form 8 Recognizance holder.

4.The value of the copper piping was said to be some $9,000.  That apparently includes the cost of reinstating the premises.

5.Those are essentially the facts these two defendants have pleaded guilty to.

6.As far as the background is concerned, the 1st defendant is aged 25 and is said to be, as I have already said, a Form 8 holder.  He has a total of five previous appearances in court.  He has been convicted of offences of theft, described as shoplifting, and possession of a dangerous drug, so he has committed an offence of a similar kind to that in the third charge.

7.The 2nd defendant is 47, a Nepalese Hong Kong resident.  He has one previous conviction, which is said to be for shoplifting, where he was fined.

8.Turning to the mitigation, both defendants submit that the starting point for sentence in relation to the burglary should take into account the fact that these were premises that were empty and were being renovated, and that can fairly clearly be seen from the photographs.  The defendants also ask for leniency, and they appear to have been in custody since their detention for this matter.

9.They each face the two charges.  As far as the starting point to be adopted for that charge, I do appreciate the authorities that have been put in front of me, particularly the case of HKSAR v Lee Chiu Yui, CACC 24/2014, where, a very similar premises to this, the court determined that the starting point of 24 months (or 2 years’ imprisonment) would be appropriate for a burglary of a premises such as that.  So that, in fact, will be the starting point I will adopt when looking at the 2nd charge for both defendants.

10.There are some aggravating factors in respect of the burglary.  Firstly, that it is a joint enterprise, which is considered to be an aggravating factor, and, secondly, specific to the 1st defendant, that he is a Form 8 holder, which is also said by the Court of Appeal to be another aggravating factor that I have to take into account.

11.So I will add those matters into the sentencing exercise before determining both the starting point and applying the one-third discount that both defendants are entitled to.

12.Now, turning to the individual charges, Charge 2 (that is, the burglary), the 1st defendant, initial starting point is one of 24 months’ imprisonment.  There are two additional aggravating factors for that. Firstly, it is a joint enterprise burglary and also the defendant is a Form 8 holder.  Total addition of 6 months’ imprisonment to that starting point, so that would be a starting point of 30 months’ imprisonment.  After deduction of plea of guilty, that leads to a figure of 20 months’ imprisonment for Charge 2.

13.For the 2nd defendant, on that charge, again a starting point of 24 months’ imprisonment.  There is an aggravating factor.  It had been a joint enterprise burglary; takes it up to 27 months.  There are no further aggravating factors with respect to this defendant.  His plea was a late plea, some seven days before, so he is not entitled to a full one-third discount.  Of course, calculation of a reduced discount from one-third on a figure of 27 months is difficult.  What I shall indicate is the sentence I will adopt on that charge, after deduction for his plea of guilty, will be one of 19 months’ imprisonment.

14.Turning to the 2nd charge, the theft was committed after the burglary.  I shall take an initial starting point of 3 months’ imprisonment for that theft.  Of course, the 1st defendant also has the aggravating factor of being a Form 8 holder, so that will increase the starting point for him to 6 months’ imprisonment.  After deduction of plea of guilty, the sentence will be 4 months’ imprisonment for him.

15.For the 2nd defendant, there is no aggravating factor in respect of that charge.  I shall reduce the sentence down to 2 months’ imprisonment for him, after deduction of plea of guilty.

16.In respect of the 1st defendant, I am aware he does have previous convictions, but they are not exactly similar -  shoplifting is not the same as this particular theft - so I shall not regard it as an aggravating factor for this theft.

17.Now I turn to the overall total sentence.

18.For the 1st defendant, I have determined that his overall sentence should be one of 22 months’ imprisonment.  So I will order that 2 months of the 3rd charge run consecutively to the 2nd charge.

19.For the 2nd defendant, I have determined his overall sentence should be one of 20 months’ imprisonment.  I will order that 1 month of the 3rd charge be run consecutively to the 2nd.

20.So the total sentence of imprisonment:  D1 is 22 months and, D2, 20 months’ imprisonment.

21.Those are my sentences.