HKSAR v. Paramjit Singh

DCCC 890/2024

[2025] HKDC 71

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 890 OF 2024

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REASONS FOR SENTENCE

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1.Before me, Mr Paramjit pleaded guilty to 3 charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 3); and one charge of Resisting arrest with arms, contrary to section 17(1)  of the Firearms and Ammunition Ordinance, Cap 238 (Charge 4).

2.Particulars of Charge 1 are that he, on 10 August 2023, at “Watsons”, Shop Nos 32A & 32B, Ground Floor, No 22 Paterson Street, Causeway Bay, in Hong Kong, stole 5 cans of milk powder, property belonging to AS Watson Retail (HK)  Limited.

3.Particulars of Charge 2 are that he, on 13 August 2023, at “Watsons”, Shop Nos 32A & 32B, Ground Floor, No 22 Paterson Street, Causeway Bay, in Hong Kong, stole 11 bottles of skincare products and one can of milk powder, property belonging to AS Watson Retail (HK)  Limited.

4.Particulars of Charge 3 are that he, on 28 January 2024, at “Park’N Shop”, Basement 1^st Floor, No 463-483 Lockhart Road, Causeway Bay, in Hong Kong, stole 16 boxes of chocolate, property belonging to PARKnSHOP (HK)  Limited.

5.Particulars of Charge 4 are that he, on 29 January 2024, at the rear lane, Nos 2-4 Spring Garden Lane, Wan Chai, in Hong Kong, made any use whatsoever of arms, namely one spray canister containing noxious chemicals, with intent to resist the lawful arrest of himself.

Facts admitted by Mr Paramjit

Charge 1

6.On 10 August 2023, at about 1737 hours, Mr Paramjit acted furtively by looking around and took 5 cans of milk powder at Watsons of 22 Paterson Street and left without paying.  The stolen property valued at $1,149 belonged to AS Watson Retail (HK)  Limited.

Charge 2

7.On 13 August 2023, at about 1805 hours, Mr Paramjit acted furtively by looking around and took a can of milk powder and 11 bottles of skincare products from the sales rack and left the same Watsons store at about 1815 hours without paying.  The stolen property valued at $1,423 belonged to AS Watson Retail (HK)  Limited.

8.The case was reported to the police.

Charge 3

9.On 28 January 2024, at about 1140 hours, Mr Paramjit wearing a yellow hoodie and a grey scarf entered ParknShop of 463-483 Lockhart Road.  At about 1153 hours, he took 16 boxes of chocolate, placed them in a yellow plastic bag and left at about 1155 hours without paying.  At the same time, the shop alarm rang.  The case was reported to the police.  The stolen property valued at $1,478.40 belonged to PARKnSHOP (HK)  Limited.

10.Mr Paramjit was placed on wanted list.

Charge 4

11.On 29 January 2024, at about 1629 hours, during an anti-pickpocketing operation, PC 24651 (“PC”)  in plainclothes spotted Mr Paramjit outside Wan Chai MTR Station Exit A3 and thought the latter looked like the wanted person.

12.PC approached Mr Paramjit and showed his police ID card.  Mr Paramjit immediately turned around and fled into Tai Yuen Street.  PC chased after Mr Paramjit and kept warning him, “Police, don’t move.”  When PC was about 3-5 meters behind Mr Paramjit, the latter turned into the rear lane, 2-4 Spring Garden Lane where he suddenly fell.

13.PC therefore controlled Mr Paramjit and displayed his police ID card again; he stated the reasons for arrest.  When PC was reporting his position to other police officers, Mr Paramjit stood up and pushed PC away.  PC grabbed Mr Paramjit’s outfit trying to restrain him but the latter resisted vigorously. PC took out his OC foam and warned Mr Paramjit.  However, Mr Paramjit took away the OC foam and sprayed it at PC’s face for about 1-2 seconds.  PC felt pain in his eyes but he did not let go of Mr Paramjit until a few passersby came to assist in subduing the latter.

14.At about 1626 hours, another officer arrived and subdued Mr Paramjit.

15.At about 1650 hours, PC found abrasions on the left side of his mouth and neck.

16.At about 1656 hours, Mr Paramjit was arrested.  A yellow hoodie and a grey scarf were seized from him.

17.Upon medical examination on the same day, PC was found to have (i)  redness on both eyes; (ii)  left face abrasion; and (iii)  neck abrasion.  PC was medically treated and discharged on the same day with 3 days sick leave granted.

18.The redness of both eyes of PC was caused by Mr Paramjit using the OC foam (being a spray canister)  on him.  The left face abrasion and neck abrasion sustained by PC were caused by Mr Paramjit during the struggle between them.

19.The OC foam was subsequently sent to the Government Lab for examination.  Forensic scientist PW13 found some stains at the nozzle of the OC foam.  The stains were found to have contained capsaicin and dihydrocapsaicin. PW13 opined that capsaicin and dihydrocapsaicin were often found in personal protection devices, usually a spray canister/device with an operating button associated with a nozzle for discharge over a range and targeting the subject in the eyes or face.  When used in this context, the ability of capsaicin and dihydrocapsaicin to elicit a burning sensation on the soft mucosal tissues qualified them as noxious chemcials.

20.The OC foam used by Mr Paramjit was arms within the meaning of section 2 of the Firearms and Ammunition Ordinance, Cap 238.

Criminal record

21.Mr Paramjit has 14 previous convictions of which 12 were for theft and one was for assault occasioning actual bodily harm.

Antecedents

22.Mr Paramjit is aged 34 (33 at the time of the offences), born in India, and is a Form 8 recognizance holder.  He has received education up to Primary 5 level.  He came to Hong Kong in 2015.  He was unemployed at the time of arrest.

23.Mr Paramjit is married. His wife is in Hong Kong but the other relatives are in India.

Mitigation

24.Mr Edward Laskey of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Paramjit.  The following is a summary of the mitigation submissions.

25.Mr Paramjit’s mother (65)  has been admitted to a hospital in India because of a liver problem and there is no prospect of release.  His wife is in Hong Kong and has been detained by the Immigration for 18 months.  Mr Paramjit asks for an early release as he is the only one who can help both his mother and his wife.

26.Charges 1 to 3 all fall within the line of “shoplifting” cases.  The appropriate starting point for each charge should be no more than 5 months: HKSAR v Yang Yan Yun [2014] 1 HKLRD 564 at para 35.

27.Charge 4 is resisting arrest with arms, namely releasing noxious chemicals from one spray canister.  There is no binding authority or sentencing guideline from the Court of Appeal.  Reference could only be made from those at the District Court level and English authorities.

28.Mr Laskey referred to the following cases:-

(a)  HKSAR v Law Ka Leung DCCC 856/2015, per HHJ Dufton: resisting arrest with an arm; fired airgun twice when being chased and stuggling; starting point of 3 years’ imprisonment; and

(b)  R v Wellington (1988)  10 Cr App R (S)  384: using an imitation firearm with intent to resist arrest; threatened chasers with imitation firearm; two years’ imprisonment after plea; starting point not doubted though appeal focused on other matters.

29.Mr Laskey also relied on The Sentencing Council Guideline on “Firearms – Possession with intent – other offences”.  Mr Laskey submitted that this case belongs to “Category C – Lower culpability” (where the offender has little or no planning or who commits a less serious nature of this offence)  and that the harm aspect belongs to “Category 3” (where no serious physical or psychological harm was caused).  As such, so Mr Laskey submits, where firearm was involved, a starting point of 2 years’ imprisonment, with a sentence range between 1 and 3 years’ imprisonment, would be appropriate; and in a case where imitation firearm was involved, a starting point of 1 year’s imprisonment, with a sentence range between high level community order and 2 years’ imprisonment, would be appropriate.

30.Mr Laskey asks the court to note the following salient features of the case:-

(a)  Mr Paramjit neither owned the spray canister nor used it in any course of committing thefts. It instead belonged to PC;

(b)  The spray was used in a split second without planning, and it lasted only 1 to 2 seconds;

(c)  The physical and psychological effects of using a gun or air gun to resist arrest were way more serious than the use of a spray; and

(d)  The spray only caused limited harm, ie redness on PC’s eyes.

31.Mr Laskey submitted that because of the aforesaid salient features, the starting point for Charge 4 should be no more than 1 year 6 months’ imprisonment.

32.Mr Laskey laid emphasis on Mr Paramjit’s timely plea of guilty which entitles him to the usual one-third discount.

33.Regarding totality, the court is urged to order the sentence for Charge 4 to run slightly consecutively to the sentences for the theft charges.

Sentence

34.I have seen a set of 5 photos provided by the prosecution (since returned)  showing the police constable’s facial and neck injuries.  They added nothing to the written description contained in the Amended Summary of Facts.

35.There are in this case two aggravating factors: (1)  the fact that Mr Paramjit is a Form 8 recognizance holder which works against him in all charges; and (2)  the fact that Mr Paramjit is a clear recidivist for theft offences which works against him in Charges 1 to 3.

36.For Charges 1 to 3, I accede to the submission of Mr Laskey and adopt as an initial starting point for each charge of 5 months’ imprisonment.  For the dual aggravating factors aforesaid, the starting point of each of the theft charges is increased to 7 months.

37.I have been informed by the prosecution that for item 9 of Part A of Mr Paramjit’s criminal record summary ie 2 offences of theft (shoplifting)  committed on the same day namely 18 August 2023 (post the two offences subject of the present Charges 1 and 2).  For these past offences, Mr Paramjit has previously been sentenced to a total of 6 months’ imprisonment (together with orders of monetary compensation)  after (so I was told by Mr Laskey)  pleas of guilty.

38.As such, when sentencing Mr Paramjit now, I deem it appropriate to consider the two past offences as well, as if I was sentencing him for a total of 5 charges of theft, together with the offence subject of the present Charge 4.  Of course, in so doing, I will give credit for the 6 months’ term that he has already served.

39.In deference to the sentencing magistrate, I shall adopt the actual custodial sentence that he/she has imposed on Mr Paramjit for the two past offences.  For the present three offences of theft (subject of Charges 1 to 3), they were committed on 3 separate days (all different from the one date of the past two offences)  with a total goods value of $4,050.40.  To take a global approach on all 5 theft offences, I adopt a global and notional initial starting point of 19 months’ imprisonment.

40.For the dual aggravating factors of Mr Paramjit being a recidivist for theft offences and a Form 8 Recognizance holder, I add 5 months to the 19 months to reach the final global and notional starting point for 5 theft offences of 24 months’ imprisonment.  Mr Paramjit pleaded guilty to all 5 offences.  The sentence he should receive for them, in the absence of other mitigating factors, should be 16 months’ imprisonment after the 1/3 discount. Since he has already served 6 months for the two past offences, the outstanding sentence should be 10 months’ imprisonment; this is the notional aggregate sentence for Charges 1 to 3.

41.For Charge 4, I take into account the maximum penalty for the offence is one of life imprisonment.  I have also borne in mind the various material placed before me by Mr Laskey, none of which has any binding force.  I consider that relevant considerations included not only the injuries caused by the OC foam but also the face abrasion and neck abrasion caused during the struggle.

42.Mr Laskey submitted as between going equipped and grabbing from a police constable the arms in question, the latter is less serious.  With respect, I do not agree.  Each has its serious aspect to it.  Grabbing an OC foam from and re-directing its use back against the law enforcement officer in the public view has the distasteful colour of an open challenge to the law.  The sentence for such use in an attempt to evade arrest ought to have a deterrent aspect to it to show the law’s abhorrence of such action.

43.For Charge 4 then, I adopt an initial starting point of 2 years’ imprisonment.  For Mr Paramjit’s status as a Form 8 Recognizance holder, I add 3 months to reach the final starting point in his case of 2 years and 3 months’ imprisonment.  In the absence of other mitigating factors, the sentence would be 18 months’ imprisonment after the 1/3 discount for plea.

44.I can detect no other mitigating factors of weight to warrant any other reduction in the sentences.

45.The offence subject of Charge 4 is completely separate and distinct from the other earlier offences.  In principle, the associated sentence ought to run wholly consecutively to the other sentences but I will consider the totality principle as applied to Mr Paramjit before passing the final sentence on him.

46.Of late, Mr Paramjit has been sentenced on 22 July 2024 to a term of 15 months minus 48 days (after plea, as I was told)  for a case of Unlawful remaining in 2015.  The case had a chequered history because of his having been released on recognizance and his non-refoulement claim and related judicial review proceedings.  What is known is that he must have been charged to court in 2018 but because of the aforementioned legal proceedings, he was not convicted and sentenced until July 2024.  I was told he has already completely served his sentence (maybe due to his earlier remand periods).  I am satisfied that his sentence for Unlawful remaining should play no part in my current sentencing exercise for (a)  it is of a different nature; (b)  the offence is aged and he should have been sentenced a long time ago; and (c)  in principle, the sentence for Unlawful remaining should, totality aside, be served wholly consecutively to the other sentences.

47.Lastly, I have been told that technically, the present four offences were committed while Mr Paramjit was on (police)  bail for another case of Smoke/Inject etc dangerous drug allegedly committed on 6 July 2023 for which he was arrested on the same day.  However, I was given to understand that the Department of Justice decided not to proceed with the case sometime in February 2024.  Because of the technical nature of the matter, I have decided not to treat it as an additional aggravating factor against Mr Paramjit.

(Mr Paramjit, please stand)

48.For Charge 1, the sentence is 4 months and 20 days’ imprisonment.

49.For Charge 2, the sentence is 4 months and 20 days’ imprisonment.

50.For Charge 3, the sentence is 4 months and 20 days’ imprisonment.

51.For Charge 4, the sentence is 18 months’ imprisonment.

52.In order to arrive at the aggregate sentence of 10 months’ imprisonment for Charges 1 to 3, I order that 2 months and 11 days of the sentence on Charge 2, and 3 months of the sentence on Charge 3, are each to run consecutively to the sentence on Charge 1, making a total sentence for Charges 1 to 3 of 10 months’ imprisonment, as I have indicated earlier.  I shall call this the Group A sentence.

53.I further order that 5 months of the Group A sentence do run consecutively to the sentence on Charge 4, making a final sentence for Mr Paramjit one of 23 months’ imprisonment.