HKSAR v. Navneet Singh

DCCC 1067/2020

[2021] HKDC 677

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1067 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant, a Form 8 recognizance holder, pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1].

2.In summary in September last year Seaside Sonata was a building under construction consisting of four residential towers situated at No. 169 Hoi Tan Street in Sham Shui Po.  The only access to the site was by the entrance on Hoi Tan Street.  All workers needed a designated card for access and security guards were employed to prevent unauthorized access.

3.At around 2:55 a.m. on 28 September the security guard patrolling the outer area of the site heard an unusual sound and therefore notified the security guard patrolling the inner area. 

4.Shortly after the security guard patrolling the inner area saw the defendant inside Room 24 on the Ground Floor of Tower 3 carrying a black rucksack and a red, white and blue nylon plastic bag.  Room 24 was used for storing construction tools and materials.

5.The security guard recognised that the defendant was not a worker of the site and asked him in Urdu why he was there.  The defendant replied in Urdu that he did not steal anything.  The two security guards then escorted the defendant to the guard room and reported the case to the police. 

6.The police arrived and found three pairs of pliers inside the red, white and blue nylon plastic bag.  Under caution the defendant denied stealing anything.   

7.Photographs have been submitted showing Room 24, the outside of the construction site, the three pairs of pliers and the red, white and blue nylon plastic bag.  I note the pliers appear old and rusty.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Davies, including that the defendant, who is 30 and single, came to Hong Kong from India in 2012 and that his family still live in India[2]. 

9.While the defendant has previous convictions for possessing a false instrument in 2014 and theft in 2020 for which he received short sentences of imprisonment, I take into account the defendant has no previous convictions for burglary.  

Starting point

10.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.  The building being part of a construction site a lower starting point is appropriate. 

11.Mr Davies submits that the burglary was not the most serious burglary being an opportunistic burglary with the defendant looking for waste material he could sell[3].  In support Mr Davies refers the court to the judgment in HKSAR v Cheung To Ming where the Court of Appeal held that a starting point of 18 months’ imprisonment was appropriate where the defendant was regarded as a sneak thief [4]. 

12.The facts of that case are however very different.  The burgled premises were the Mai Po Marshes Wildlife Education Centre and Nature Reserve.  The window next to the front door had been broken and the main door left open.  The defendant, an illegal immigrant, admitted that when he went past the Centre he noticed the door had been left ajar and as he was hungry he entered the Centre and cooked two packets of instant noodles.   

13.Mr Davies explains that the defendant had only just picked up the pliers and had not used them.  Whilst it is suspicious that the defendant is found at 2:55 a.m. in possession of three pairs of pliers, taking into account the pliers appear old and rusty, I am prepared to accept that the defendant picked up the pliers and did not take them with him for the purpose of committing burglary.

14.I am satisfied that a starting point of 2 years’ imprisonment is appropriate. 

Commission of offences by refugees or torture claimants

15.The defendant is a Form 8 recognizance holder.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

16.I am satisfied offences of burglary affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  By reason of the defendant’s Form 8 status I enhance the starting point by 3 months to 2 years and 3 months’ imprisonment[5].    

17.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 6 months’ imprisonment.