HKSAR v. Ajay Kumar

DCCC 632/2020

[2021] HKDC 376

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 632 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.

2.Full details of the offences are set out in the facts admitted by the defendant.  In summary, this is a burglary case which took place in one non-domestic premises, and the defendant entered the same shop twice on the same day.

3.On the 1^st occasion, the defendant together with two other persons unknown in a joint enterprise committed the 1^st offence, and for the 2^nd offence, the defendant alone trespassed into the shop and stole HK$3,000 cash from it on the same day.

4.During the first occasion, CCTV of the shop showed that the defendant and 2 unknown males opened the rolling gate of the shop and the defendant and one other male entered the shop.  The defendant and the other male searched the counter near the entrance but did not walk into the inner shop, and left a few minutes later at around 3:46 am.

5.During the second occasion, the defendant came back at around 4:12 am and entered the shop alone and went into the inner part of the shop.

6.The defendant searched the cashier counter near the entrance and took a white box with him and left the shop at around 4:18 am.

Criminal records and background of the defendant

7.The defendant was born in India and received up to Form 6 education there.  He is Form 8 holder who came to Hong Kong in 2015.  He is 26 years of age and, prior to the offence, he relied on ISS to sustain his day-to-day living.  He is single, and does not have any dependents, and all his family members reside in India.  The defendant is of clear record in Hong Kong.

Mitigation

8.In mitigation, Ms Herbert emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

9.She relied on the authority of HKSAR v Sim Ka Wing CACC 450/2000 (30 May 2001, unrep).  In that case, it was held that the proper starting point in cases of burglary of non-domestic premises with no aggravating or mitigating features is 2½ years’ imprisonment.  Such burglaries will involve a measure of planning and a degree of premeditation is already built into this starting point: see page 5.

10.She accepted on behalf of the defendant that a potential aggravating feature in this case is that the defendant committed the offence whilst being a torture claimant holding a Form 8 Recognizance and that this may be a factor considered in sentencing.

11.She also accepted that an enhancement of 3 months to the sentence is appropriate in situations where the defendant is a Form 8 holder: HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 (14 January 2015, unrep).

12.She also accepted that working as part of a group can, in some situations be considered an aggravating factor.  However, she pointed out that in this case the amount taken was not high, the burglary was not particularly sophisticated nor was the defendant a ‘career’ burglar.

13.She also submitted that the defendant had no prior connection to the shop, and that, aside from the status of the defendant as a Form 8 holder, no further aggravation of starting point is required.

14.She suggested that as both charges involve the same premises on the same evening, and the defendant re-entered the Shop within 30 minutes of exiting the first time, the sentence of both charges should run concurrently.

15.She referred me to the following authorities, namely HKSAR v Brian Alfred Hall [2013] 5 HKC 202 at 215 (see paragraphs 46 and 60), and HKSAR v Yu Tsz Fung DCCC 1051/2020 (17 February 2021, unrep).

16.Relying on the aforesaid authorities, she submitted that the “key test” for determining whether the sentences for two offences ought to run concurrently or consecutively was whether each offence was separate in time and objective, and whether each added to the culpability of the other, in which case the sentence would be consecutive, otherwise it would be concurrent.

17.She submitted that in this case the two charges are closely connected to each other in time as they occur on the same evening within a short time of one another, and they are clearly connected in objective as they involve the same shop and money was only taken in respect of the second charge.

18.She further submitted that 1^st charge does not really add to the culpability of 2^nd charge, and that the sentences should run concurrently as the 2 charges effectively arose from the same event.

Sentencing considerations

19.As rightly pointed out by Ms Herbert in mitigation, 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 2½ years’ imprisonment.

20.In the summary of facts admitted by the defendant, it stated that it was not apparent on CCTV in which of the two occasions did the defendant or the second suspect took away the HK$6,000 cash from the cashier counter near the entrance of the shop.  My view is that it does not matter, and will not affect the role and culpability of the defendant because of the nature of the joint enterprises of the 1^st charge.

21.In the present case, for the 1^st charge, there are two aggravating factors.  Firstly, as rightly pointed out by Ms Herbert, the defendant committed the offence whilst being a torture claimant holding a Form 8 Recognizance.

22.In addition to that, the defendant committed the 1^st offence together with two other persons in a joint enterprise.

23.Taking into account of the aggravating factors in the present case, and what had been submitted on behalf of the defendant, I consider a starting point of 3 years’ imprisonment to be appropriate in the present case.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 2 years’ imprisonment.

24.For the 2^nd charge, I agree with Ms Herbert’s observation that the 2^nd occasion, though the defendant acted alone, was closely connected to 1^st occasion in time and connected in objective.

25.Because of the proximity of time of the two offences, I see no reason why the 2^nd offence is not the continuation of the 1^st offence.  Therefore, I consider that the same starting point should be adopted on the 2^nd charge and the sentence of it should be run concurrently with the 1^st charge.

26.There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment for both charges to be run concurrently.