HKSAR v. SINGH GURMAIL AND ANOTHER

DCCC 1172/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1172 OF 2012

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Reasons for Sentence

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1.  Defendants, there are four charges on the indictment. D1, you have pleaded guilty to Charges 2 and 3, which are offences of burglary and resisting arrest. D2, you have pleaded guilty to three charges which are theft, burglary and resisting arrest, charges 1, 2 and 4 respectively.

2.  The burglary charge 2, is a joint charge against you both.  The other charges are charges against each of you individually. 

3.  On 25 September 2012 at about 4.40 am, the police patrolled past a rear lane at No.27 Granville Road, they found prised marks on a wooden door at the side entrance of the premises.  The premises in question are known as a shop called Cotton On.  Suspecting that the premises were burgled, the police went in.  They found you the 1st defendant carrying a rucksack at the staircase of the premises.  They immediately chased after D1.

4.  After a struggle to evade the police, the 1st defendant was subdued and arrested by officers.  He was arrested for burglary.  He said in Chinese, “I just went inside with my friend intending to steal.”

5.  The police then entered the shop and found D2 inside a locked fitting room.  After repeated warning for the 2nd defendant to open the door of the fitting room, D2 suddenly rushed out intending to flee. However, he was restrained by a police officer but despite being restrained, he continued to resist and struggle fiercely when he was eventually subdued by other police officers.  He too was arrested for burglary.

6.  He admitted that his friend had kicked open the door and thus he followed him inside the premises.  They could not find any money, so they took away clothes.  The bags of stolen goods, that is the clothes, were found nearby as well as the other items in Charge 2.

7.  The total value of the stolen properties from the shop Cotton On was $7,614. 

8.  D2 then made various admissions under caution. In those admissions he admitted to the offence of theft in Charge 1.

9.  The offence of theft in Charge 1 was committed on 20 September, some five days earlier, at about 1.15 pm, inside a cubicle in the male public toilet at King George V Memorial Park at Tsim Sha Tsui.  The victim had locked the door of the cubicle and hung his waist bag on a hook behind the door.  One to two minutes later, the victim found his bag missing. He had lost cash of $4,000 as well as various other personal items as listed in the charge. 

10.  The defendant admitted that he stole the bag and took the cash and threw the documents inside the bag into a rubbish bin in the park.

11.  Mr Raymond Wong, solicitor for D1, has made full and thorough mitigation.  I have taken into account all that he has had to say.  I have also taken into account all that Ms Linda Ip solicitor has had to say for D2.

12.  I turn to deal with D1 first.

13.  D1 is an Indian male by origin and came to Hong Kong from India in 1993.  He is now aged 36.  He has one previous criminal conviction of blackmail to which he was sentenced to 3 years’ imprisonment on 30 November 2012, some two months ago.  He is a divorcee with two sons, aged 12 and 14.  He had custody of his sons and lives with his mother in Ngau Tau Kok.  Since his incarceration for the blackmail offence, however, the sons have moved to live with their mother. 

14.  I am informed by Mr Wong that on the evening of this offence, the defendant was drinking alcohol as he was upset that he was unable to attend his father’s funeral in India because of lack of funds.  He foolishly committed this offence under the influence of alcohol. 

15.  In respect of D2, he is aged 33.  He has 16 previous criminal convictions out of nine occasions appearances in court.  Ten of those convictions relate to dishonesty, however, none of those previous convictions is for burglary. He is a divorcee and has a son aged 10 living with his ex-wife. 

16.  Miss Ip’s mitigation is that this was not pre-planned or premeditated.  He was out drinking with the 1st defendant and under the 1st defendant’s influence, he committed this offence of burglary.  Miss Ip concedes that the true and only mitigating factor here is his plea of guilty. 

17.  In respect of the charge of theft, Miss Ip urges the court to take into account that but for the defendant’s confession, the police may never have solved this case and therefore the defendant is truly remorseful for committing these offences. 

18.  Both solicitors have rightly pointed out there are clear tariff guidelines for burglary of commercial premises.  That is one of 2½ years’ imprisonment.  I shall follow that tariff guideline save for what I have to say as follows. 

19.  As for D1, you committed this offence whilst on bail for the offence to which you were sentenced for blackmail.  In fact, you had jumped bail and you were a wanted person at the time you committed this offence.  I consider your committing this offence whilst on bail for the other offence to be an aggravating factor. 

20.  For D2, the aggravating factor in your case is that you have previous similar convictions related to dishonesty, and I intend to take that into account as an aggravating factor in increasing or enhancing the starting point.

21.  These factors will be taken into account in enhancing the starting point for the burglary charge.

22.  Defendants, in all the circumstances, therefore, taking into account, what is common to both of you, your pleas of guilty which is the strongest mitigating factor, the fact that you have saved the court time and shown your remorse, I pass the following sentences.

23.  For D1, I’ll start with Charge 2, the starting point for burglary, after trial, is one of 30 months’ imprisonment.  However, in view of the fact that you committed this offence whilst you were a wanted person and on bail to which you had jumped bail, I increase that starting point by 3 months to a starting point of 33 months’ imprisonment.  Giving you full credit for your plea of guilty, that term should be reduced to one of 22 months’ imprisonment. 

24.  On Charge 3, you are sentenced to 14 days’ imprisonment. 

25.  You are presently serving a sentence of imprisonment of 3 years.  In considering the appropriate sentence and the principle of totality, I order 12 months of Charge 2 to run consecutive to your 3 years’ imprisonment, and the remaining of the term of the other charges and that of Charge 2 are to run concurrent to each other and to your previous sentence.

26.  For D2, on Charge 1, I would have taken a starting point of 12 months’ imprisonment had I convicted you after trial.  Giving you full credit for your plea of guilty, that term shall be reduced to 8 months’ imprisonment.  However, the fact that you came clean to the police and you offered information, I reduce that further to one of 7 months’ imprisonment. 

27.  On Charge 2, I take a starting point of 30 months’ imprisonment.  However, I would enhance that sentence by 3 months in view of the aggravating factor of your previous record and convictions related to dishonesty.  That makes a starting point of 33 months.  However, I give you full credit for your plea of guilty and that sentence is to be reduced to one of 22 months’ imprisonment. 

28.  For Charge 4, you are sentenced to 14 days’ imprisonment. 

29.  The offences in Charge 1 and 2, were distinct and separate offences.  I consider a partly concurrent and partly consecutive sentence should be served on those two charges.  I take into account the principle of totality and I consider 4 months of Charge 1 is to run consecutive to Charge 2 which would make a total of 26 months’ imprisonment for these three offences.  The remaining terms are to run concurrent to each other.