HKSAR v. Gurmeet Singh

DCCC 1109/2021

[2022] HKDC 1349

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1109 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to amended Summary of Facts to a charge of attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (1^st charge); a charge of driving while disqualified, contrary to section 44(1)(b)  of the Road Traffic Ordinance, Cap 374 (2^nd charge); and a charge of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (3^rd charge).

Facts

2.PW1 was the owner of the two squatter huts at No 155, Po Lau Road, Lok Ma Chau, New Territories (“the Huts”).  The Huts were fenced by mesh wires with one iron gate.  PW2 lived next to the Huts.

3.On 4 March 2021, PW1 and her family left the Huts after confirming the padlock of the iron gate was in normal condition. 

4.At around 0950 hours on 21 April 2021, PW2 looked outside the window of her residence and saw the defendant walking in a lane next to the Huts.  About 10 seconds later, PW2 saw the defendant enter the open area of the Huts fenced by mesh wires without unlocking any lock.  PW2 immediately called PW1 and asked if PW1 had any visitor.  PW1 answered in the negative and asked PW2 to report to police.

5.After PW2 hung up, she went in front of the iron gate of the Huts and found the padlock of the iron gate had got missing.  At the same time, the defendant also walked out from the open area fenced by mesh wires with a shirt in his hands.  PW2 intercepted the defendant and asked in Punti why he went inside.  The defendant pointed to the Huts and answered in a language which PW2 did not understand.  As the defendant was leaving, PW2 took three photos of him with her mobile phone. 

6.PW3 and PW4, both police officers, later arrived at the scene and saw a light goods vehicle WB7884 (“the LGV”)  parked near the lamppost BD2010 of Po Lau Road with the defendant standing next to it.  Upon noticing the police officers, the defendant got on the LGV and reversed it.  PW3 and PW4 walked towards the LGV and found the defendant was driving the LGV with no passenger on board.  PW3 asked the defendant to stop and alight from the LGV.  Upon investigation, PW3 confirmed that the defendant was able to communicate in Punti.  The defendant claimed that he was doing recycling business there. 

7.At 1030 hours, PW2 showed the photos of the defendant to PW4.  The latter confirmed that the defendant was the male in the photos.  PW3 then arrested the defendant for attempted burglary.

8.Further investigation revealed that the defendant was disqualified from holding or obtaining driving licence from 28 July 2020 to 27 July 2022, and the third party insurance of the LGV expired on 16 February 2021.  PW3 then arrested the defendant for driving while disqualified and using a vehicle without third party insurance.

9.In the video recorded interview, in the presence of a Punjabi interpreter, the defendant said under caution, inter alia, that the iron gate of the Huts was not locked.  He felt thirsty so he went inside to get some water for drinking.  When PW2 asked him why he went inside, he explained to PW2 that he wanted to get water for drinking and washing his hands.  He also knew he had been disqualified from driving.

10.At the material times:

(a)  the defendant attempted to enter as a trespasser a building, namely the Huts, with the intent to steal therein (1^st charge);

(b)  the defendant being a person who was disqualified from holding or obtaining a driving licence, while he was disqualified, drove a motor vehicle, namely the LGV, on the road (2^nd charge); and

(c)  the defendant used a motor vehicle, namely the LGV, on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (3^rd charge).

Criminal record

11.The defendant has 4 previous criminal records involving convictions of 16 charges, of which 3 relate to theft, one of which is a burglary conviction in 2016, and 10 related to traffic convictions.

Mitigation

12.Defence counsel submitted that the defendant accepted the plea offer from the prosecution dated 26 May 2022 on 30 June 2022, indicating the defendant’s intention to plead guilty to the 3 charges. 

13.He said, concerning the 1^st charge, that the Huts were not occupied at the time and therefore no fear or alarm was caused to the residents of the Huts.  He also said that the defendant did not enter the Huts, he did not actually take any items or damage any property, as there was a change of heart of the defendant after he entered the open yard through the iron gate. It was said that the defendant did not damage any lock to the iron gate on entry.

14.As for the 2^nd and the 3^rd charge, defence counsel submitted that the defendant got on the LGV to reverse it as he thought that the LGV was blocking the way of the police officers.  It was said that the defendant was not the one who drove the LGV to the scene, and that he had driven only a small distance.  It was also submitted that the driving did not pose risk to other people or property, and that the place concerned is a village road and not a highway.

15.Defence counsel submitted the defendant is deeply remorseful as to what he had done.  He also handed to this court a letter from Mr Leung of the Society of Rehabilitation and Crime Prevention, dated 16 September 2022.

Discussion

16.Before sentencing, this court has carefully considered what was being submitted on the defendant’s behalf, including the mitigation letter from the social worker, Mr Leung.

1^st charge

17.According to section 11(4)  of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.  By reason of section 159G of the Crimes Ordinance, the penalty for conviction upon indictment of attempted burglary is the same. 

18.The defence counsel conceded that the premises in question is a domestic premises.  The Court of Appeal in the case of R v Chan Yui Man, CACC 36/1988, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age for burglary in domestic premises.  It is also subject to adjustment upon any aggravating or mitigating factor.

19.In this case, the defendant acted alone.  The lock to the iron gate was found missing but there is no evidence of forceable entry or any tools or violence was involved in the defendant’s access.  No property was found stolen or damaged.  Although no one was within the premises at the time, and therefore no fear or concern was caused, the acts of the defendant had obviously caused concern to the neighbour, ie PW2. 

20.The defendant is not a fresh offender.  He has a similar conviction in 2016 and has 3 theft-related convictions in 2020, but this court is not going to enhance the sentencing starting point by reason of this factor.

21.Considering the circumstances of the case, the appropriate sentencing starting point is 2 years and 9 months’ imprisonment.

22.The defendant committed the present offences whilst he was on bail for other offences.  This constitutes an aggravating factor, for which the sentencing starting point is enhanced by 3 months to 3 years’ imprisonment.

23.The defendant has indicated his guilty plea to the court on 19 July 2022, ie after the trial date was fixed to 26 September 2022 in the mention hearing on 16 February 2022. For this reason, the court is willing to give the defendant a 20% sentencing discount.

24.The defendant is therefore sentenced to 28 months and 24 days’ imprisonment for the 1^st charge.

25.The court has considered the letter from Mr Leung.  Mr Leung said he last saw the defendant in mid-December 2020.  It did appear that Mr Leung was not fully aware of the defendant’s situation since then, until he wrote the letter of 16 September 2022.  In fact, the defendant has since their meeting committed further offences on 1 April 2021 and committed the present offences whilst on bail for the 1 April 2021 offences.  However, this court urges Mr Leung to assist the defendant further on his release from prison in this case.

2^nd charge

26.A person guilty of this charge is liable to a fine of $10,000 and imprisonment for 12 months, coupled with a disqualification order of not less than 12 months in the case of a first conviction and not less than 3 years for a second and subsequent conviction.

27.This is the defendant’s second similar conviction.  The sentencing starting point for this charge is 6 months’ imprisonment. 

28.The defendant has committed this offence 20 days after he was put on bail for a similar offence.  This is an aggravating feature in sentencing.  The sentencing starting point is enhanced to 8 months’ imprisonment.

29.By reason of the defendant’s guilty plea, he is again accorded 20% sentencing discount.  He is therefore sentenced to 6 months and 12 days’ imprisonment for this offence. 

30.He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 3 years from today.  There is no special reason in this case for not imposing such disqualification order.

3^rd charge

31.A person convicted of this charge is liable to a fine of $10,000 and to imprisonment for 12 months. 

32.This is the third similar conviction of the defendant.  The court does not accept contention submitted by defence counsel that the driving of the defendant at the time did not pose risk and danger to other people.  It was obvious that the police officers were there around at the time.

33.The court finds that the appropriate sentencing starting point for the charge is 6 months’ imprisonment.

34.The defendant committed this offence 20 days after he was put on bail for a similar offence.  Sentencing starting point is enhanced to 8 months’ imprisonment.

35.Again, the defendant is afforded 20% sentencing discount by reason of his guilty plea and is therefore sentenced to 6 months and 12 days’ imprisonment for this charge.

36.On conviction of this charge, the court shall, unless for special reasons thinks fit to order otherwise, order the defendant be disqualified from holding or obtaining a driving licence of a vehicle for such period as the court may determine, being not less than 12 months nor more than 3 years from the date of conviction.

37.This court sees there is no special reasons in this case not to impose the disqualification order, accordingly, the court now orders the defendant be disqualified from holding or obtaining driving licence for all classes of vehicles for 20 months from today.

Totality

38.Coming to consider the totality principle and the defendant’s overall criminality in this case.  The court orders that the sentence for the 2^nd charge and the 3^rd charge are to run concurrently with each other.  The disqualification orders under the 2^nd charge and the 3^rd charge are also to run concurrently with each other.

39.Commission of the 2^nd charge and the 3^rd charge clearly add to the culpability of the defendant in this case, as they are of totally different nature to that of the 1^st charge.

40.Considering the total culpability of the defendant in this case, the court now orders that 3 months of the sentence for the 2^nd charge and the 3^rd charge are to run consecutive to the sentence in the 1^st charge, the rest to run concurrently.

41.The total sentence for the defendant is therefore 31 months and 24 days’ imprisonment, which this court considers just and proportionate to the defendant’s overall culpability in this case.