HKSAR v. PANDI GURMEET SINGH

DCCC 44/2021

[2021] HKDC 1202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 44 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary, which occurred on 23 October 2020 at the Yau Yuet Chinese Medicine Clinic in Mong Kok.  A handbag was stolen, which contained various items set out at particulars of offence.  The medicine clinic in question was under renovation at the time and not open to the public. 

2.  PW1 was in charge of the shop and had entered the premises in the afternoon of 23 October 2020 to inspect the renovation.  She placed and left her handbag at the reception desk near the entrance.  This handbag contained the items that can be seen in particulars of offence, which included over $1,500 of currency and other personal items. 

3.  There is a plastic roller shutter gate to the shop, but that was only halfway shut.  The defendant and another male were observed by a police officer.  They drew his suspicion or they aroused his suspicion, so he observed them.  He saw a person described as the wanted person who was with the defendant.  That person entered the shop.  The defendant remained outside as a lookout.  The wanted person snatched the handbag from the reception desk and left via the entrance in a matter of seconds.  The wanted person crossed the street to meet with the defendant.  They both walked away in the direction of Dundas Street with the handbag being passed to the defendant. Arrest was then effected.  The handbag and the stolen properties were recovered after the defendant was subdued.

4.  The Agreed Facts show that the defendant was a Form 8 holder at the time.  The antecedents show the defendant is aged 30 years old.  He has one previous conviction for gambling in a gambling establishment for which he was fined in 2019.  The fine was $200.  The sentence and the conviction are not relevant to sentencing today.  It is agreed and admitted the defendant was both unemployed at the time he was arrested and that he is born in India and, finally, that he is a Form 8 holder in Hong Kong.

5.  The defendant faces a charge of burglary in a non-domestic premises.  It is common ground that the usual starting point for burglary of a non-domestic premises would be 2½ years’ imprisonment, otherwise expressed as 30 months’ imprisonment.  This normal starting point relates to burglaries with no aggravating or mitigating features, will be the starting point for a person of clear record convicted after trial. It is said that that starting point includes consideration of a degree of premeditation and planning. 

6.  It is also the case that that conventional normal starting point can be lowered in the case of opportunistic burglars akin, it is said, to sneak thieves who walk into open offices or shops to steal.  An authority can be found for that in the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259.  I am also referred to a number of other cases in mitigation which explore the starting points for opportunistic burglaries of shops or other premises.  Of course, each of those cases is and should be confined to its own facts and provide only limited assistance to the court in determining the proper starting point in this case.

7.  Finally, in mitigation, it is said that this was an opportunistic theft.  It was not pre-planned.  That neither the defendant, nor the wanted person, could have realised that PW1 would leave the handbag unattended.  The wanted person was, in fact, the person who entered the premises, the defendant acting as a lookout and assisting in the removal and disposal of the stolen item.  It is said that although the defendant is not of a clear record, his conviction is minor and should be discarded for the purposes of sentencing in this case.  I agree with that submission.

8.  My approach to sentencing will be as follows:  I observe in mitigation that this case obtained elements of both pickpocketing and burglary and seems some kind of hybridised form of offending.  Nevertheless, it did involve the entry into a non-domestic premises.  That entry was not forced and took opportunity of an open door.  The offence must be seen as opportunistic as nobody was to know that the victim was to enter the shop and leave her items in a place where they could be taken. 

9.  The items stolen are not of no value at all or of low value like the packets of noodles in the case of Cheung To Ming.  They do have a value.  Certainly, the cash element is over $1,500. So this is in itself a serious offence that must be taken seriously. 

10.  Taking into account the nature of this burglary and the fact that it was a joint enterprise burglary and its opportunistic nature, I will take a starting point for sentence, which includes the fact this was a joint enterprise, at 21 months’ imprisonment.  That sentence will be enhanced by the fact the defendant is a Form 8 holder, that it has to be one of 3 months’ imprisonment, to a final starting point of 24 months’ imprisonment.

11.  The defendant has pleaded guilty, has indicated a plea from an early stage.  He is entitled to one-third discount. That leads to a sentence of 16 months’ imprisonment, which will be the sentence I will impose for this offence.