HKSAR v. MARIA MANINDER SINGH

DCCC 855/2019

[2020] HKDC 839

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 855 OF 2019

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant (“D”) faces a Charge Sheet containing 2 charges as follows:

Charge 1

Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210

Charge 2

Loitering with intent to commit an arrestable offence, contrary to section 160(1) of the Crimes Ordinance, Cap 200.

2.  He pleads guilty to Charge 1.  Prosecution agrees not to proceed with Charge 2 and seeks to have it to be left on the Court’s file and not be proceeded with without the leave of the Court.

3.  The Particulars of Charge 1 are as follows:-

“MARIA Maninder Singh, on the 1^st day of July, 2019, in Hong Kong, together with a person unknown, having entered as trespassers part of a building known as “STOCKTON”, Ground Floor, No. 32 Wyndham Street, Central, stole therein one MacBook Pro, one MacBook Air and one iPad.”

Summary of Facts for Charge 1

4.  The facts admitted by D in relation to Charge 1 show that the victim premises, the STOCKTON (“the Bar”) was a Bar selling liquor to customers.  It closed for business at about 02:00 hours on 1 July 2019.  At around 16:00 hours the same day, the owner of the Bar was informed that the items as particularized in Charge 1 (total value around HK$30,000) went missing.  They were intact when the Bar closed the night before.  The CCTV of the Bar showed that 2 South East Asian culprits entered the Bar through the back door of the Bar at around 04:12 hours and searched through the tills of the Bar.  They left at around 04:33 hours via the side door leading to Glenealy, taking with them the missing items. A report was made to the police.

5.  PC 22433 was the investigating officer.  He viewed the CCTV and noticed that one of the culprits had tattoos on his left and right hand, and a scorpion tattoo on the back of his right hand.  On 21 September 2019, owing to another incident, D was taken to Central Police Station where he came across PC22433.  The officer saw the tattoos on D’s person, and noticed that they were identical to those he saw on the culprit captured by the CCTV screenshots of the Bar.  D now admits that at the material times he entered the Bar as a trespasser and stole the items as particularized in Charge 1.

Background of the Defendant

6.  D was born in India on 3 March 1987.  He is now 33 years old.  He moved to Hong Kong to join his father as a dependent in 1996 and is now a permanent resident of Hong Kong.  He completed Form 3 education and started his working life as an office boy in 2015.  In 2019 his work involved delivering seafood from Kennedy Town to different hotels using his own private car, earning approximately HK$18,000 per month.  Although he is still single, he has 2 sons. The 8 years old son now lives with his mother in the Philippines while the 4 years old son lives with D’s current girlfriend in Hong Kong.  D’s father passed away in 2018.  He has 2 elder brothers working in Hong Kong.

7.  D has 5 previous criminal records, including Possession of DD, Burglary, Attempted Burglary and Robbery.  He was last released from prison on 15 August, 2018.

Mitigation

8.  In mitigation, Mr Young, who represents D today, states that D expresses his sincere apology and remorse for this offence.  He submits 2 letters written by D in support.  D would like to make restitution for the loss but does not have the means at the moment.  D accepts responsibility for the crime and intends to stay well away from his ‘friends’ and the use of alcohol – which were likely triggers to his offending on this occasion.  He expressed his eagerness to turn a new leaf and take care of his girlfriend and younger son.

9.  Mr Young submits that it was entirely a crime of opportunity, lasting 21 minutes during which no one was hurt and no property was damaged or destroyed.  The premises were not ransacked.  There was no forced entry, prising at the door nor glass broken.  At the time D and his friend wanted to see if the Bar was still open for business, that they found the door open and unlocked, and discovering no one inside, they stole whatever they could find of value and left.  D was wearing short-sleeved shirt with no attempt to hide his tattoos.

10.  Mr Young submits a number of authorities to support his contention that the starting point should be of something less than the conventional tariff of 2 ½ years for a Burglary of non-domestic premises.  He also points out that the previous conviction of Burglary and Attempted Burglary were more than 8 years ago and the Robbery over 5 years ago.  He submits that D has already been well punished for these offences and their effect on sentence at this point should be neutral.

Sentence

11.  It is well established that the conventional starting point for Burglary of non-domestic premises is 2 ½ years imprisonment (see R v Wong Man [1993] 1 HKC 80).  In HKSAR v Sim Ka-wing unrep. CACC 450/2000, Keith JA stated that “The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.” (paragraph 9 of Judgment)

12.  Although D has 2 previous similar records, they were dealt with on the same occasion over 8 years ago.  The Robbery was committed over 5 years ago.  It is a borderline case whether D should be treated as a repeated offender.  I am prepared to accept his expression of genuine remorse on this occasion and not to treat these records as an aggravating factor.  However, his mere expression of an intention to compensate the victim carries no weight and would not be treated as a mitigating factor (see R v Kwok Lai-ling [1989] 1 HKLR 408 (420D-F)).

13.  Having considered all relevant factors and the strong and thorough submissions of Mr Young, I am prepared to be as lenient as possible to D on this occasion.  I accept that the present offence falls within the opportunistic burglary as indicated by Keith JA in Sim Ka-wing.  I adopt a starting point of 2 years for this offence.  D is given a full 1/3 discount for his timely guilty plea.  I see no other mitigating factor warranting any further discount.  For Charge 1, D is sentenced to 16 months’ imprisonment.  Charge 2 is to be left on file and not to be proceeded with without the leave of Court or Court of Appeal.