HKSAR v. MARIA MANINDER SINGH

DCCC 390/2022 [2022] HKDC 777 &

DCCC 773/2021 [2022] HKDC 779

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 390 OF 2022 & 773 OF 2021

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REASONS FOR SENTENCE

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1.  The 1^st defendant whom I will simply refer to as the “defendant” here has pleaded guilty to and is convicted of a charge of attempted burglary in the case of DCCC 390/2022 and two charges of burglary under DCCC 773/2021. I shall deal with the case of 390/2022 first.

2.  The charge in this case reads as follows:-

The defendant here and another man, Zarshad, were said to have on 24 March 2021 in Hong Kong attempted to enter as trespassers part of a building known as 7^th Floor, No 50 Pan Hoi Street, Quarry Bay, with intent to steal therein.

3.  The facts for the case are as follows.

4.  No 50 Pan Hoi Street, Quarry Bay, is in fact part of a rather large block of buildings with the street number of No 48 to 94 Pan Hoi Street.  The building had been sold for redevelopment and therefore most of the residents had moved out at the material time, only three families stayed behind.  At around 4 in the morning of 24 March 2021, PW1 and PW2, two residents living on the 6^th floor of No 58 Pan Hoi Street, heard some strange noises coming from the roof.  They went up there to find out what was happening and saw there the defendant and the man Zarshad, D2 in the case in fact.  The 1^st defendant was holding a crowbar in his right hand and with some bouffant hair and a T-shirt he is wearing.  When confronted by the two PWs the defendant told them that he was there waiting for a friend.  Zarshad on the other hand said that he lived nearby.  Now finding their explanations hard to believe, PW1 asked if they were there in fact to rob someone and thereupon the two men fled from the scene. Police were called in and they arrived at around 4:12 in the morning.  Whilst sweeping the area they intercepted the defendant and Zarshad outside No 1001 King’s Road which was in fact about 400 metres away from No 50 Pan Hoi Street. Now after the defendant and Zarshad were taken back to PW1’s building, PW1 confirmed that these two were the two men he and PW2 saw earlier at the rooftop.

5.  As part of the police investigation the police found also that the metal gate of a residential unit on the 7^th Floor, No 50 Pan Hoi Street, (called “Location B” in the Summary of Facts), had been prized and at the staircase of the 6^th floor a crowbar and a wig of bouffant hair were found.  Forensic examination carried out subsequently showed that the metal gate was likely to have been prized by this crowbar as some of the paint from the crowbar could be found on the metal gate, and the defendant’s DNA was found inside the wig.

6.  Now according to the owner of Location B, that is PW3, the flat was used by him for storage only and no one lived there anymore.  PW3 found the metal gate was damaged in that the metal plate had been prized but the metal door behind remained intact.  Now I pause here to note that, interestingly, the police found a membership card of PW3 on the rooftop of No 56 Pan Hoi Street.  By itself it would have suggested that someone must have gone into the flat.  But as there is no further explanation for that in the Summary of Facts I shall simply leave it as it is.

7.  In a video interview conducted by the police with the defendant subsequently, the defendant basically denied to have committed the offence.  But of course now he admits in court that he had in fact on the day in question, namely 24 March 2021, attempted to enter Location B as a trespasser with the intent to steal therein.

Background

8.  The defendant is now 35 years old.  He is born in India and came to Hong Kong in 1996, he was I believe 9 years old at the time.  He is educated up to Form 3 and lives in Hong Kong with his brother, his father having passed away earlier and his mother is living in India.  It is said that he used to work as a food delivery worker. 

9.  Now he has a total of seven previous criminal convictions including one possession of dangerous drugs, one robbery and three burglaries among others.  Indeed the last conviction he had was for burglary which was entered on 24 September 2020 for which he was sentenced to a term of 16 months’ imprisonment.  According to the antecedent statement put before me, the defendant was discharged from prison on 24 October 2020.  I assume that is because he must have spent a good period of time in custody before the sentence was passed for that offence.

Sentencing

10.  The first question I have to deal with is whether the premises is to be treated as a domestic or a non-domestic premises, as they call for a different starting point according to a long line of authorities. 

11.  Having considered that with some care, I am prepared to treat the premises where the defendant and Zarshad had attempted to burgle as a non-domestic premises.  These are the two main reasons for me to have come to that conclusion:-

(1)  The premises on the 7^th floor according to PW3 was at the time used only for storage and no one was living there.

(2)  The whole block in fact was in the course of being redeveloped as a result of which the vast majority of the people living there had moved out.

12. Having said that, however, it cannot be denied also that in this case the defendant was acting with another, that is Zarshad. And it is also clear that he had a crowbar with him when committing the offence, both of which show that there is some planning and/or organisation in it. With these in mind, and taking into account also the fact that he had three previous convictions of burglary and another conviction for robbery, I shall adopt a starting point of 33 months’ imprisonment.

13.  The defendant had indicated his guilty plea at the earliest stage and he would of course be entitled to a full one-third discount.  I have considered the letter submitted by his counsel to the court this morning. Whilst I wish that he would in fact take the opportunity and turn a new leaf after this, I do not think there is anything else which could have led me to give a further discount in sentence.

14.  The defendant is therefore sentenced to a term of 22 months’ imprisonment for the charge in the case.

15.  I turn now to DCCC 773/2021.

16.  The defendant is convicted of two burglaries on his own pleas.  The particulars for the 1^st count says that he and the 2^nd defendant in the case, San Esteban, on 9 May 2021 had entered as trespassers part of a building known as Ground Floor, No 287 Hennessy Road, Wanchai, with intent to do unlawful damage to the building or anything therein.

17.  The 2^nd count says that on 11 May 2021, the defendant together with another person unknown having entered as trespassers the 1^st floor of the same building stole therein some copper wiring.

18.  The facts which he has admitted are as follows.

19.  On 9 May 2021, that is 1½ months or so after the offence in DCCC390/2022, PW1 in this case one Madam Sin who resided on the 5^th floor of the building noticed that the plastic tubes in the ground floor and the 1^st floor of her building had been damaged.  As they were undamaged the day before, a decision was made to report the matter to the police. 

20.  Upon checking the CCTV records it was found that:-

(1)  Between 1:28 and 1:31 on 9 May 2021, D1 and D2 were seen walking and then stopping outside the building;

(2)  D2 was seen handing D1 something from her backpack;

(3)  D1 then entered the building where he used his hands to damage and pull down a section of the plastic tubings which were used as conduits for the electric wires inside;

(4)  D2 remained outside the building at a nearby bus stop throughout;

(5)  At around 1:37, D1 left the building, re-joined D2 and left.

21.  At about 9 am on 11 May 2021, PW1 noticed that the plastic tubes on the 1^st floor had been further cut.  About a metre of the copper wires inside had been taken away.  A further check of the CCTV footages show that at around 4:09 am in the morning of 11 May 2021, D1 and another unknown male cycled and stopped outside the building.  D1 then took a bag from the unknown male and went inside the building.  Whilst inside, D1 took out a pair of pliers from the bag and then with a torch D1 proceeded to damage the plastic tubes on the 1^st floor.  At around 4:13 am, D1 left the building.  He gave a bag to the unknown male and then cycled off.

22.  Now the building itself is apparently one for mixed use.  There is a massage establishment on the 1^st and the 2^nd floor but the units on the 3^rd up to the 5^th floor inclusive are for residential purposes. 

23.  At around 5 pm on 17 May 2021, D1 and D2 were intercepted outside the Charterhouse Hotel in Wanchai where they had a room.  When the room was searched the police found clothings which D1 was believed to be wearing on 11 May 2021 and they also found a torch there. 

24.  Before me, D1 admitted to have entered PW1, Madam Sin’s building as a trespasser, firstly, on 9 May 2021 with intent to do unlawful damage to the things therein on the ground floor and two, on 11 May 2021 having entered the 1^st floor of the building as a trespasser stole therein some copper wires.

Sentencing principles

25.  Like the case in DCCC 390/2022, the first question I think the court will have to address is the nature of the premises being burgled.  Two things are to be noted there.  The first is that it is a building with both commercial and residential tenants. The second is that it is the common part of the building which was being intruded. 

26.  With these two things in mind, I believe I can take a slightly more generous view and adopt a starting point of 2½ years.  Such a starting point is consistent with a long line of authorities involving burglaries of a similar nature (see HKSAR v Shing Shi Wai(?)  CACC 97/2019 and another case of the same name which was reported in 2015 5 HKLRD 33).

27.  As I have already taken into account the question of D1 being a repeating offender in the sentence I passed for DCCC 390/2022, I do not think it is fair for me to regard that as an aggravating feature here again. 

28.  Also, although D1 was not alone on each of the two occasions on which the two charges arose, in the case of charge 1 given that I have found D2 may not have been a party to the offence I shall give the 1^st defendant  the benefit of doubt and treat him as acting solo on each of these two occasions. 

29.  That leaves us with the question of the 1^st defendant committing the present offence whilst on police bail for DCCC 390/2022.  For that, the court is obliged to consider increasing the sentence.  On this occasion I shall add 3 months to the starting point.  With a basic starting point of 2½ years, that will come up to 33 months as a whole. 

30.  For his guilty plea D1 will of course be given a full one-third discount.  And in the absence of any other mitigation the defendant is sentenced to a term of 22 months’ imprisonment for each of the two charges in the case.

31.  Now as there is a close proximity both in terms of time and place, I think there is sufficient ground for me to order the two sentences to run concurrently with each other and that is what I will do here. 

32.  The same, however, cannot be said about the sentence passed in DCCC 390/2022.   In fact D1’s counsel very fairly accepted that is a completely different and separate offence. 

33.  Be that as it may, having taken a step back and looked at the total sentences the defendant is facing, I think I am allowed to order only 8 months of the term for each of the charges in the case to run consecutively to the 22 months’ terms imposed for DCCC 390/2022.

34.  As a whole, the defendant will have to serve a total term of 30 months’ imprisonment for the two cases.