HKSAR v. Singh Laik

DCCC 283/2021

[2021] HKDC 1247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The Facts

2.This case of burglary took place on 27 November 2020 at the Hong Kong Buddhist Association (“the Association”)  in Lockhart Road, Wan Chai (“the Offence Location”).

3.CCTV cameras were installed there.  The defendant was seen inside the Offence Location and was ransacking the place at around 0350 hours on 27 November 2020 when PW1, the Executive Officer of the Association, was watching the CCTV in real time. PW1 then reported the matter to the police.

4.At around 0418 hours on 27 November 2020, the police officers intercepted the defendant who was on his way leaving the building of the Offence Location.

5.Upon body search of the defendant, a 30 cm long screwdriver, a pair of scissors and one iPhone (with a phone case) were found in his trousers’ pockets.  Besides, the defendant was holding in his hand one white cloth bag containing two sanitary napkins. The said iPhone with a phone case (“Stolen Property 1”)  and the said white cloth bag with two sanitary napkins (“Stolen Property 2”)  were later found to be stolen by the defendant from the Offence Location.

6.The defendant was arrested by the officers and under caution, the defendant admitted that he had gone to the 1/F of the building to commit burglary.

7.At around 0425 hours on 27 November 2020 PW1 returned to the Offence Location. Upon checking it was found that:-

(a)  A window of the Offence Location was broken open; and

(b)  A locked cabinet inside the Offence Location was prised open.

8.A fingerprint was lifted on a partition screen placed inside the Offence Location.  Upon examination it was found that the said fingerprint matched with the defendant’s fingerprint.

9.During video-recorded interview of the defendant conducted on 27 November 2020, the defendant further said the following under caution:-

(a)  He burgled the Offence Location due to poverty;

(b)  At the material time he first went to the rear lane of the building and climbed to the 1/F. He then used the screwdriver to break open a window of the Offence Location thus gaining entry to the Offence Location;

(c)  The screwdriver and the pair of scissors seized from the defendant were tools for burglary;

(d)  He stole Stolen Property 1-2 in the Offence Location;

(e)  He claimed that he did not prise open the cabinet inside the Offence Location;

(f)  He fled the Offence Location via its main entrance. He then went to the G/F of the building via the staircase. He was intercepted by the police at the G/F entrance of the building; and

(g)  He admitted that the person captured at the screenshots of the CCTV recordings during the burglary was him.

10.Stolen Property 1-2 were inspected, and it was confirmed that Stolen Property 1 (worth about HK$5,000)  was owned by the Association while Stolen Property 2 was owned by the Project Manager of the Association.  Stolen Property 1-2 were originally kept in the Offence Location.

11.At the material time, the defendant did not have any right or permission to enter the Offence Location but he entered it as a trespasser and stole therein Stolen Property 1 and Stolen Property 2 as particularised in the charge.

Mitigations

12.In mitigation, counsel for the defendant submitted that the defendant is now 43 years old and is a permanent resident of Hong Kong.  The defendant came to Hong Kong from India with his family when he was 7 years old.  He was educated in Hong Kong leaving school at the age of 17.

13.Apart from other general personal background of the defendant, it was revealed that the defendant has sustained a broken leg whilst working and this unfortunate incident had made him unemployed for many years.

14.It was further submitted that the defendant did not set out to burgle the Buddhist Association premises specifically but was walking past and decided there and then that he might be able to steal some money from the premises.  Since he was in financial difficulties and decided to commit the offence, and luckily without encountering or frightening anyone.

15.The defendant only took an iPhone and a bag containing sanitary napkins which was lying around and he took it on off the chance not knowing what it contained.

16.It was acknowledged that the defendant does have many previous convictions including six previous burglary related offences, theft and dangerous drugs convictions. He was only released from prison approximately six months before he committed the present offence.

17.It was submitted that the defendant in fact is, in reality, a petty criminal who had never been convicted of any really serious offences or any offences involving violence.

18.In relation to mitigating factors, it was submitted that there are no aggravating features of the offence itself.  Counsel for the defendant described that “the defendant was in fact a rather inept burglar as he picked a building which had CCTV, left his fingerprints behind and did not even succeed in his object of stealing any money to use for his living expenses – the defendant certainly did not break into a wealthy looking premises which might have had client money or business proceeds kept locked up on the premises for example”.

19.Lastly, it was submitted that the defendant does not have a clear record but he did co-operate with the authorities on his arrest and did plead guilty at the earliest opportunity so deserves the normal one third discount in sentence for his plea.  A normal starting point of 30 months’ imprisonment with an increase to reflect the poor criminal record of the defendant was said to be appropriate.

Consideration and Sentencing

20.The Queen v Wong Man [1993] 1 HKC 80 and Attorney General v Lui Kam Chi [1993] 1 HKC 215 are the relevant cases for consideration.  It is trite that for non-domestic burglary, and in the absence of aggravating features, the usual starting point for consideration is 30 months.

21.To decide whether the offence features any aggravating factors, I note the case of HKSAR v Fan Kit Hung CACC 62/2009, at para 9, the Court of Appeal cited with approval the dicta of Yeung JA (as he then was)  at para 15 of HKSAR v Cheng Wai Kit, CACC 338/2007:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as: (1)  the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous convictions of a similar nature, and (6)  the offender commits multiple offences.”

22.In the present case, the defendant has a long list of criminal conviction record and counsel for him had properly acknowledged that on top of the usual starting point, there should be an increase of sentence albeit that normally, the criminal record of an accused should not affect the sentencing in a fresh case so as not to give an impression that he or she is punished again.

23.After careful consideration, I am of the view that, however, an increase is inevitable. Similarly, one can see from his last conviction of burglary in 2018 that he was sentenced to 22 months’ imprisonment – seemingly it was because a starting point of 33 months (ie 30 months plus 3 months)  was adopted.  It was confirmed by the Defence that that case involved also a non-domestic premises. Sadly though, the sentence did not give sufficient deterrence to this defendant and he re-committed the offence only after a short period of time of his release.

24.Taking into account all the circumstances of the present case and the mitigations, I do not agree that the defendant has been a petty criminal.  Burglary is in itself a very serious offence.  The defendant is not ignorant of that and he repeatedly committed the offence.

25.I shall take 30-month as a base starting point and increase it by 4.5 months.  The defendant is entitled to a 1/3 discount for his guilty plea.  I do not find further reduction justified.

26.The defendant is sentenced to 23 months’ imprisonment accordingly.