HKSAR v. Manpreet Singh

DCCC 666/2017

[2019] HKDC 1448

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 666 OF 2017

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to burglary (Charge 1) and failing to surrender to custody without reasonable cause (Charge 2). 

Facts for Charge 1

2.At all material times, the 7-storey building situated at No. 71 Public Square Street, Yau Ma Tei, Kowloon (“the Building”) had two entrances, one at Public Square Street and the other at Arthur Street. The entrance at Public Square Street, which was the main entrance, was installed with a metal gate, while the entrance at Arthur Street, which was the rear entrance, was installed with a metal gate on the ground floor (“the Subject Metal Gate”) and a metal gate at the staircase on the first floor.

3.While the Building was vacant for the purpose of re-construction, there was an office with a staff quarter on the second floor (“the Office”) where the proprietor of the construction company responsible for the re-construction, namely M/YU Kam-wah (“PW1”) would stay overnight. CCTV was installed in the Building.

4.At around 2300 hours on 13 March 2017, after the construction workers left the Building, PW1 locked all the metal gates and stayed inside the Office.

5.At around 0125 hours on 14 March 2017, while PW1 was in the Office, he saw through the CCTV that the Defendant and M/ANURAG Singh (“the Accomplice”) approached the Subject Metal Gate and tampered with it with their hands. About 30 seconds later, they left the premises.

6.About 20 seconds later, the Defendant and the Accomplice returned to the premises. The Accomplice handed over a BBQ fork to the Defendant who used it to open the gate. The two then entered the Building. PW1 immediately called the police.

7.At around 0131 hours, PC 9665 (“PW2”) and his teammates arrived at the rear entrance of the Building. PW2 saw the Defendant pushing the Subject Metal Gate and walking out from the Building, while the Accomplice standing at the staircase between the first floor and the ground floor. Feeling suspicious, the police officers intercepted them.

8.Upon search, PW2 found a bent BBQ fork on the road outside the rear entrance of the Building, while PC 18388 found a torch in the left front pocket of the Defendant’s trousers.

9.The Defendant was subsequently arrested for Attempted Burglary.

10.In the video-recorded interview conducted on 14 March 2017, with the assistance of two interpreters, the Defendant admitted under caution that he opened the door of the Building and went in with the Accomplice.

11.The CCTV installed at the rear entrance of the Building captured that on 14 March 2017 around 0118 hours, the Accomplice handed over a BBQ fork to the Defendant who then inserted it into the grille of the gate; when the gate was opened, the two entered the Building.

12.At the material time, the Defendant, together with the Accomplice Singh, entered as trespassers part of a building known as No. 71 Public Square Street, Yau Ma Tei, Kowloon, with intent to steal therein.

Facts for Charge 2

13.The Defendant was to appear at the District Court with one count of Burglary on 20 July 2017. He was granted bail by a District Court Judge on 10 August 2017.

14.The case was adjourned to 23 November 2017 for Mention. However, at the hearing on 23 November 2017, the Defendant did not turn up in court. A warrant of arrest was issued against him.

15.On 13 November 2018, the Defendant was intercepted at the junction of Nathan Road and Pak Hoi Street and was found to be the subject of the warrant of arrest.

16.In the interview conducted on 28 November 2018, the Defendant said under caution that on the day of the court hearing, he took medicine for fever and overslept. After getting up, he went to the court at 14:00 hours. He came to know that he was wanted, so he felt scared and went home. He spent the next 3 or 4 days in bed because of high fever. He could not think of the next step, so he just stayed at home.

17.At the material time, the Defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody as was appointed by a court.

Mitigation

18.The Defendant is 28 years of age.  He received 12 months for handling stolen goods in 2017 and 3 months for going equipped for stealing in 2017.  The second record came into being after the present offence.  He has been a Form 8 recognizance holder since 2010.  His application is being considered by the local authority.  

19.The Accomplice is also a Form 8 recognizance holder.  He pleaded guilty to one charge of burglary and received 16 months. 

20.Mr. Whitehouse submits that 16 months may be appropriate for the Defendant likewise, though he concedes that Charge 2 herein shall warrant a consecutive sentence.  He argues for a short sentence for Charge 2.   

Sentencing considerations

21.The Court of Appeal observes that the “conventional starting-point of 2 ½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.” (per Keith JA at p. 5 of the Judgment)

Sentencing this Defendant

22.At the outset the Defendant and the Accomplice tampered the metal gate with their hands for 30 seconds.  After 20 seconds, they returned.  The Accomplice handed over a BBQ fork to him so that he could insert it into the grille of the gate to pick the lock.  Afterwards they entered the premises together.  The CCTV showed they left the premises after several minutes.

23.Those factors suggesting a lower starting point than the conventional include the lack of detailed planning, the BBQ fork used to pick the lock being a simple ad hoc tool, the Defendant having a torch, and no property loss.  I consider a starting point of 18 months. 

24.I do not aggravate his sentence this time due to his previous record but warn him in clear terms of an aggravation in his sentence if he commits any dishonesty offences in future.  Two factors suggesting a higher starting point include two burglars in joint enterprise and the Defendant being a Form 8 recognizance holder committing a crime against the security and interest of the local community.  I increase the starting point by 3 months due to each aggravating feature.  The actual starting point is 24 months.     

25.After a one-third discount for the plea of guilty, the sentence is 16 months for Charge 1.

26.The absence from court for a year warrants 3 months’ imprisonment as the starting point.  After a one-third discount for the plea of guilty, the sentence is 2 months for Charge 2.

27.Failing to surrender to court to face the original charge always warrants a consecutive sentence. The overall sentence is 18 months.