HKSAR v. Singh Gurinder

DCCC 1013/2021

[2022] HKDC 637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1013 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of burglary of a commercial unit.

2.The particulars of the charge are that, on 14 August 2021, he having entered as a trespasser part of a building known as Aesthetic Dental Implant Center, Rooms 1101-1104, Sino Cheer Plaza, No 23 Jordan Road, Yau Ma Tei, Kowloon, stole therein three recycle bags, 19 hard disks, 14 keys, one keychain, one folder, two bills, three USB drives and some documents.

3.In summary, the defendant burgled a dental clinic.  In August 2021, the clinic was under renovation.  It would be open for business on weekdays and closed on weekends for renovation work.  Mr Lau (PW1)  was one of the decoration workers.

4.At 2:30 pm on 14 August 2021, which was a Saturday, PW1 was working with the other decoration workers at the clinic.  The rear entrance door leading to the back staircase was not locked.  PW1 noticed the defendant, who appeared to be of Indian descent, sneak into the clinic through the door at the back staircase and enter the staff room.  The defendant ransacked the staff room putting items into his own rucksack.  Having confirmed with the clinic staff, PW1 stopped the defendant when he was trying to leave.

5.The defendant was found with three recycle bags (Exhibits 1, 3, 8 respectively)  containing the following property belonging to the clinic:-

(1)  in the first recycle bag, ie E1, 17 hard disks (E2);

(2)  in the second recycle bag, ie E3, 11 keys, two more hard disks, one keychain and a stack of documents (Exhibit 4 to 7); and

(3)  in the third recycle bag, E8, another stack of documents around 15 cm in thickness, one folder and hard copies of stock record (Exhibit 9 to 11).

6.The police were called.  Upon a thorough search by the police, the defendant’s rucksack (E12)  was found with two electric bills belonging to the clinic (E13).  The defendant’s left trouser pocket was found with three USB drives (E14)  and three more keys belonging to the clinic (E15). Clinic staff confirmed that E1 to 11 and E13 to 15 were property belonging to the clinic.

The defendant’s background

7.He is a Form 8 recognizance holder.  He has four criminal records, including five charges of dishonest offences which are either theft or attempted theft.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Percy, counsel for the defendant.  I am told that the defendant is 41 years of age, an Indian national, married with three children under 17 years of age.  The three children all live with their mother in India.

9.Since his arrival in 2019, he has been living alone in Hong Kong Government designated accommodation.  He has been unemployed and in receipt of the ISS subsidy of $1,200 per month as living expenses.  It is accepted that he has been convicted of crimes of dishonesty and was last released from prison in April 2021.  It is also acknowledged that as a Form 8 holder the court is required to enhance the sentence.

10.It is submitted that on the night before the burglary the defendant had been out drinking with a friend.  As they were heading home in a state of intoxication, he and his friend found the backdoor to the building open and out of curiosity they entered the building to see what they could find of any use or value in any rubbish left on any of the staircase landings.  The defendant admits that he helped himself to the items found in his backpack when there were workmen doing renovations.

11.It is stressed that the defendant did not put up a struggle when apprehended by the workmen, nor did he try to escape before the police arrived.  No damage was done.  All items were retrieved by the police.  No loss was suffered by the company.  Mr Percy asks the court to treat the present case as an opportunistic burglary at the lowest level and that a reduction of 3 months from the normal starting point of 30 months is justified.

12.It is further submitted that the defendant is not a sophisticated person and cannot read Chinese.  It could not be shown that he was stealing the documents for the information contained therein for illicit purpose.  The defendant was still hungover from the drink last night.  It was not a planned premeditated theft.

Reasons for sentence

13.Defence counsel submits that the burglary in the present case was opportunistic when the defendant sneaked into the clinic through its unsecured rear door and stole randomly.  I initially had concern about the purpose or intention of the defendant taking away a lot of documents and some data disks which had no apparent commercial value to him.  At the end, I am persuaded for the benefit of doubt to accept that the defendant did not steal the stolen property for the information contained therein for future illicit purpose, otherwise the sentence could have been heavier.  But the documents as well as the hard disk and USB contained information which are of important value to the clinic or people who wanted to keep it.

14.The usual 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 2 years and 6 months’ imprisonment.  It could be accepted that the present case was an opportunistic burglary when the defendant sneaked into the clinic to steal with the back rear door unsecured.  A starting point a bit lower than the conventional 30 months’ imprisonment can be taken. The starting point will be lowered by 3 months in the circumstances.

15.However, on the other hand, the defendant is a persistent offender.  He had committed five theft offences in the past two years and had only been discharged from prison four months before the present offence.  Obviously the previous sentences cannot deter him from stealing.  This is an aggravating factor.  A further aggravating factor admittedly is that he is a Form 8 holder.  The sentence should be enhanced for these two factors.  The mitigating factor will be set off by the aggravating features for the two factors I have referred to.

16.In all the circumstances of the case, I am satisfied that a notional starting point of 30 months at the end is appropriate.  The defendant will be given one-third discount for his timely guilty plea.  He is therefore sentenced to 20 months’ imprisonment.