HKSAR v. SINGH SATINDER PAL

DCCC 1183/2023

[2024] HKDC 1020

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1183 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has admitted committing a burglary at Room 11 on the 1^st Floor of Mirador Mansions in Tsim Sha Tsui on 8 August 2023. On that day, Room 11 was undergoing renovation and installation of an air-conditioning system. The room was located on the 1^st floor which is a general area of shops and commercial premises occupying the first two floors of that building.

2.  PW1 who is the victim, went to perform the air-conditioning work and at the time he carried a backpack which contained a hard disk and a laser distance meter.  He left the backpack on the floor of the room where the renovation and other work was taking place.  At some point during the afternoon at round about 5 o’clock he left the room leaving the door unlocked and ajar.  He returned later.  On the next day he realised that the hard disk and laser distance meter were missing from his backpack.  As a result, he reported to the police.  The police then investigated by looking at the CCTV camera for that location at the appropriate time and the CCTV camera revealed the defendant entering the room and spending about 1½ minutes there.  As a result of this, the defendant was located and suffice to say he admitted the offence from the beginning.  He was arrested on 15 August.  He admitted this offence and also admitted taking a torch.  The total value of the items was somewhat over $600.

3.  As far as the defendant’s background is concerned, he is now aged 48. He was born in Hong Kong, I am told, on 27 July 1975.  He has a number of criminal convictions, a total of 14 offences on five occasions.  There are three similar offences dating back to 2009 when he appears to have been sentenced to somewhere in the region of 3 years’ imprisonment for three separate burglaries.  The defendant was most recently imprisoned in 2015 for an offence of trafficking in dangerous drugs and was released from that in 2020.

4.  As far as the defendant’s other personal circumstances are concerned, he has worked generally in the construction industry.  He had a marriage with two children who are now adults and live with their mother.  He had a relationship with a Miss Sisi prior to his arrest.  They married in April of this year and will presumably set up home together.  Now unfortunately for the defendant he suffered a substantial injury in respect of his job and has been unable to work recently.  He has a fracture of the scaphoid in the left wrist.  He received some employee compensation but I am told as at present he is still taking painkillers twice a day and seems unlikely that he would be able to resume work in the construction industry for a considerable time.

5.  The mitigation put forward is the defendant was at the time of the offence unemployed and at a somewhat of a loose end, unable to work and he wandered in the area of Nathan Road eventually coming to Mirador Mansions and then wandered around Mirador Mansions.  Noticing that the door was ajar on the 1^st floor, seeing there was a construction site or renovation work there, entered and then took items from the room and also from the backpack and it is characterised by the defence as being a ‘walk-in theft’.

6.  Dealing with the approach to sentence, this is a commercial premises and for a burglary of a commercial premises or non-domestic premises there is a guideline sentence and the starting point for sentence normally for a person of clear record convicted after trial would be one of 30 months’ imprisonment.  I have been referred to the case of HKSAR v Cheung To Ming which can be found at [2006] 2 HKC 416 which allows the court to depart from that guideline in what is described as a ‘walk-in burglary’.  In fact the original Judgment that dealt with that was HKSAR v Sim Ka Wing at CACC 450/2000 which states:

“The conventional starting point is 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning and thus a degree of premeditation and planning is already built into the conventional starting point. The conventional starting point...”

- and that is the 30 months,

“...can be lowered in the case of an opportunistic burglar akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value”.

I will in this case treat this as form of sneak theft and applying the case of HKSAR v Sim Ka Wing to that. The starting point adopted in HKSAR v Cheung To Ming in the burglary in that case is one of 18 months’ imprisonment.

7.  The mitigating factors that are put before the court is that this was an impulsive, unpremeditated and unplanned burglary.  The only planning that is evident is that the defendant went to Mirador Mansions.  The premises were physically unoccupied at the time of the offence.  They are non-residential premises.  The items that were taken were of low value.  It is said that this is sneak theft converted into a burglary only by the defendant exceeding by a few feet the permission which he did have which was to go into the corridor. The door itself was ajar and the defendant had no burglary tools or implements with him.  I take into account all those factors when determining the appropriate starting point for sentence.

8.  This case, in my view, has elements of a sneak theft in that there is no planning or equipment and the break-in itself is opportunistic but it would appear the defendant had put himself at a place where it was possible to enter into these rooms and shops and also the offence occurred round about 5 o’clock in the afternoon which is the chances of meeting someone were quite high. There are elements of a sneak theft and so I take that into account in determining the initial starting point for sentence.

9.  Once that is done then I have to look at whether there are any other aggravating factors which would increase that starting point.  In this case, obviously the defendant’s criminal record has to be taken into consideration. He has a poor criminal record involving other facets of criminality but he does have a previous conviction for burglary.  It was a number of years ago, so I do take into account when determining that as an aggravating factor that it was a considerable time ago, but it is still an aggravating factor I must consider.

10.  Of course the defendant also has a mitigating factor of his admission of the offence from the earliest stage and his cooperation with the police which will entitle him to a full one-third discount from the starting point I arrive at.

11.  I consider the initial starting point taken on the basis of the burglary itself should be one of 21 months’ imprisonment.  This is subject to the aggravating factor of the previous convictions for which I will add an extra 3 months, taking the final starting point to one of 24 months’ imprisonment.

12.  The defendant is entitled to a one-third discount from that figure which leads to a final sentence of 16 months’ imprisonment for this offence.