HKSAR v. JAGDISH SINGH AND ANOTHER

DCCC 400/2020

[2021] HKDC 20

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 400 OF 2020

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REASONS FOR SENTENCE

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1.  This is a case of non-domestic burglary; the burglarized premises are restaurants. The burglars gained entry with tools in the middle of the night when the restaurants were closed for business.

2.  The first burglary occurred on 11 November 2019 involving D2 and an unknown man; on this occasion, the owner of a Japanese restaurant in Tai Kok Tsui lost approximately $20,000 in cash and incurred costs of repair to damaged items like the cash register, the camera lens etc. not less than $13,300.  

3.  The action of the burglars was captured by the CCTV of the restaurant. Although D2 wore a facemask during the course of burglary, it dropped to his chin at some stage revealing the larger part of his face as a result.

4.  About 3 weeks later on 5 December 2019, D2 committed another burglary, this time he went with D1 to burgle a restaurant in Sham Shui Po. They got away with properties worth $618, the majority of which are restaurant menu, the rest are some miscellaneous items such as plastic bags, bags, boxes, socks etc.

5.  Someone from the adjoining shop happened to see through the security cameras the defendants lingering outside the restaurant and a while later entering it having tempered with the switch box of the roller shutter of the restaurant. He immediately notified the police. Within five minutes or so, the defendants emerged from the restaurant with the loots but were caught red-handed by the responding officers.

6.  D1 pleaded guilty to one count of burglary (charge 2) while D2 to two counts (charges 1 & 2).

7.  D1, a 31-year-old Indian, single, has three prior convictions – one assaulting police officer, two robberies. His last conviction is robbery back in 2018 for which he was sent to prison for 21 months, 12 months of which was ordered to run consecutively to his then existing term of 2 years and 4 months also for robbery.

8.  The court heard that D1 came to Hong Kong legally in 2014 and thereafter remains here as a Form 8 Recognizance holder.    

9.  Counsel for D1, Miss Alva, said that whilst in custody for over a year, D1 has been reflecting on his past behaviour and realized how wrong he was. In his apology letter, he is asking for forgiveness and mercy.

10.  D2, a 42-year-old Pakistani – a married man with a daughter, and a Form 8 holder since 2009, has amassed five convictions over the past decade, mainly to do with drugs (all simple possession) plus one handling and one illegal remaining. His last conviction is possession of drugs in 2019 for which he was given a 5-month prison term.

11.  Counsel for D2, Mr Whitehouse, contended that insofar as Count 1 was concerned, the case against him was not strong and depended entirely on the security camera images of this semi masked man. Not wanting to waste court time contesting this, he chose to admit it.  

12.  Both defendants are Form 8 holders, Miss Alva quoted the comment of the Court of Appeal in Sandagdorj Altankhuyag[1]  that the status of being a Form 8 Recognizance holder may constitute an aggravating factor if the offence affects the community at large or have a significant impact on Hong Kong’s reputation for order and security, but it may not aggravate a defendant’s position in every case or in every crime.  

13.  Mr Whitehouse on the same topic submitted that though regarded as aggravating, the inability and prohibition to engage in a proper job should be considered.

14.  While on the question of acting in concert, Mr Whitehouse has this to say. “While it is accepted that this can be so regarded the mere fact that in each case two men were involved, in the circumstances of these two cases, it seems illogical to increase the sentence for this reason. The aggravation will surely only be found for example where a gang was involved or the numbers increase the risk of violence.”

15.  There are sentencing guidelines for this type of offence, for non-domestic burglary, the usual sentence for consideration in the absence of aggravating factors is one of 30 months.

16.  There exist aggravating factors in the present case in that the defendants were acting in concert and both of them are Form 8 holders. In enhancing the sentence, I bear in mind what the Appellate Court said in Islam Azharul[2](An authority submitted by the defence):

“……It would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate……”

The Court also expressed its view on that matter “……the fact that the appellant was a Form 8 Recognizance holder at the time of the offence, and in our view, this would warrant an enhancement of nine months’ imprisonment.”

17.  Regarding “acting in concert” being an aggravating factor, two persons to do a crime is in any sense more serious than a lone perpetrator; the more persons involved, the more serious the crime would be. I think the seriousness should be reflected accordingly in the sentence.

18.  Based on the facts of the case, I take 30 months as the starting point for each of the charge, and increase it by 3 months for the aggravation of acting in concert, and I would have further added 9 months but for the totality principle as mentioned by the Appellate Court, I add 3 months instead, that takes the starting point to 36 months.

19.  As far as mitigation is concerned, apart from their timely guilty pleas, there isn’t anything of substance. Giving the full one-third discount, the starting point is reduced to 24 months. 

20.  In relation to D2 who faced two charges, I order that charge 1 be run consecutively to 6-month of charge 2, the total term is one of 30 months.

21.  The resulting sentences are as follows:

D1-	Charge 2 -	24 months’ imprisonment.
D2-	Charge 1 -	24 months’ imprisonment.
	Charge 2 -	24 months’ imprisonment (6 months of which is consecutive to Charge 1)
Total term: 30 months’ imprisonment.