HKSAR v. JAGPREET SINGH AND ANOTHER

DCCC 326/2020

[2020] HKDC 1167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 326 OF 2020

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Reasons for Sentence

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1.  The defendants in this case were charged with burglary but have pleaded to an alternative charge to burglary, criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200. The prosecution accepts this plea.

2.  The particulars are that both defendants, on 25 January 2020, outside Room J, Flat A, 7th Floor of 199 Ma Tau Wai Road, without lawful excuse damaged the door lock of the said room, intending to damage such property or being reckless as to whether such property would be damaged. 

Facts of this case

3.  The premises concerned were located in Flat A, 7th Floor of 199 Ma Tau Wai Road, Kowloon.  Within Flat A were 10 subdivided rooms, A to J.  The 1st defendant was the tenant of Room D and had been since 2016.  Room J was rented to PW1 in 2019.  He lived there alone and had secured the premises with a door lock and CCTV with a sensor.  The sensor would be activated if there was motion detected at his door and he would be notified immediately via his mobile phone.  He could then see images captured by the CCTV camera on his mobile phone instantaneously. 

4.  PW1 went to live with his father on a temporary basis, on the 5 January 2020, leaving the premises room J empty but locked up. On 25 January, 20 days later at about 7 pm, his CCTV camera’s sensors was activated and he could see through his mobile phone the 2nd defendant enter his room.  He also saw the 1st defendant outside his room.  He called the police who immediately proceeded to the premises. 

5.  The police found the 1st and 2nd defendant in the 1st defendant’s room, Room D.  Both were arrested for burglary.  PW1 did confirm to the police that nothing was stolen or missing from inside his Room J but the door lock had been damaged. 

6.  The defendants had the same explanation and that was the 2nd defendant had no fixed abode and was looking for somewhere to live.  The 1st defendant told him that he thought room J was now unoccupied and suggested they enter it to have a look.  They did exert excessive pressure on the doorknob, damaging it and gaining access to the room.  The 2nd defendant went in but the 1st defendant remained outside.  As soon as the 2nd defendant went in, he realised it was still occupied and left without taking anything away from inside the room. 

Mitigation

7.  I have heard full mitigation from both defence counsel on behalf of the defendants.  Both are asylum seekers and refugees holding a Form 8 recognisance form, and relying on ISS for funds to remain in Hong Kong.  Both are from India. 

8.  The 1st defendant is 27 years old; he entered Hong Kong on a tourist visa before applying for asylum.  He is single and has a clear record in Hong Kong.  I have been told just prior to the offence, the 1st defendant had been drinking and when the 2nd defendant told him he was looking for somewhere to live, he thought it would be a good idea to look in Room J.  He had not seen the tenant for some time and thought it might be empty and available for the 2nd defendant. 

9.  The 2nd defendant is 32 years old and has been in Hong Kong since 2012.  He too has applied for asylum.  At the material time he was looking for somewhere to live.  He too is single and has a clear record in Hong Kong. 

10.  Both men mistakenly thought the tenant of Room J had moved out because he had not returned for almost three weeks.  They decided to open the door to have a look to see if it was suitable for the 2nd defendant to rent.  They were likely to have applied too much pressure to the door lock or doorknob and broke it.  Both are willing to compensate PW1 for the damage to his doorknob.  I have been informed by the prosecution that the cost of repair is HK$200.

11.  I have heard full mitigation on behalf of the defendants and accept this is not a serious case of criminal damage. 

12.  Both have pleaded guilty and both have clear records in Hong Kong.  Both intend to pay compensation for the damage. 

13.  Having considered all these relevant factors, as well as the fact that both were remanded in custody for six months before being granted bail, for that alternative charge I take a starting point of 6 weeks’ imprisonment and reduce it by 2 weeks to reflect their early plea.  Both defendants are sentenced to 4 weeks’ imprisonment. 

14.  As both defendants were in remand for a substantially longer period of time and therefore have already served a term of well over 4 weeks, I will order that they be released here from court after this hearing. 

15.  I make a compensation order of HK$100 each to be deducted from their bail.