HKSAR v. GURPREET SINGH

DCCC 924/2023

[2024] HKDC 1476

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 924 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to a single charge of burglary committed on 30 March 2023 at a premises in Yuen Long in the New Territories. The premises were at an address in Fung Chi Tsuen which is in Wang Tat Road in Yuen Long. The description of the premises is 5,000 square feet with a fence of about 1.5 metres tall erected around it. Although there is a main metal gate, there was a hole in the fence. The premises consisted of a stone hut which was occupied by PW1 and his family and two metal huts for storage purposes and in the metal huts some electric wires and copper pipes were kept. The metal huts were permanent structures with rooftops and walls. The victim, PW1, on 29 March confirmed that the electric wires and copper were in place in their huts.

2.  Around 7.30 in the morning of the next day, 30 March 2023, the defendant was seen outside the fence of the location, seen to climb the fence and enter into it.  This was observed from a first floor balcony.  The police were notified and they detained the defendant outside the stone hut where he immediately admitted he had climbed through the fence, the break in the fence and entered into the location.  He was found with about HK$100-worth of electric wire and about $200-worth of copper pipes missing from the respective metal huts.  They were later recovered in a black plastic bag.  The defendant admits today he had entered as a trespasser that particular building with intent to steal inside the building.

3.  As far as the defendant’s antecedents are concerned, he is 35 years old, born in India, came to Hong Kong in 2011, currently a Form 8 holder in Hong Kong, he is single and I am told received no formal education.  His mother is resident in India.  She is aged 65 years, he has other relatives there. Although the defendant has Form 8 status in Hong Kong, I am told he wishes to return to India at the conclusion of these proceedings.  Of course if he is no longer making that application he would be deported at the end of any sentence of imprisonment.  The defendant has been on remand since his arrest on 30 March 2023.

4.  As far as the approach to sentencing is concerned, there are of course guideline sentences in respect of burglaries of domestic premises and non-domestic premises.  The guideline approach is in the burglary of a domestic premises.  The starting point for a person of clear record after trial would be 36 months’ imprisonment.  The starting point for a non-domestic premises is 30 months’ imprisonment.

5.  In this case the premises is an occupied residence which contains two stone huts.  I have observed that it contains elements of both a domestic premises and a non-domestic premises in that the stone huts are not occupied by people and forms an element of a hybridised kind of premises and I will take that into account when determining the starting point for sentence.

6.  The defendant is also a Form 8 holder in Hong Kong, that is an aggravating factor.  Of course there is a penalty authority on this and normally in cases that would reach the District Court an enhancement of sentence of up to 6 months’ imprisonment is appropriate.  I bear in mind when considering that the nature of this burglary, it is opportunistic, there are no particular burglary tools other than a hexagonal key, it shows little planning and entry could be obtained through a break in a fence.  Furthermore, the amount taken in the course of the burglary or potentially to be taken was of very low value, some $300, and at the end of the day the defendant was not able to make off with anything.

7.  Prosecution in the production of the defendant’s antecedents did show the defendant has previous convictions.  In this case the only previous conviction is one of theft shoplifting which is not relevant.  There is a subsequent conviction for going equipped for stealing.  Those sentences do not constitute an aggravating factor for this offence.

8.  As far as the starting point for the burglary is concerned, I will take a point midway between treating it as a domestic and a non-domestic premises, that is a starting point of 33 months’ imprisonment.  As far as the Form 8 enhancement is concerned, I bear in mind the nature of disposal and the low value of goods, I will in fact impose a 3 month enhancement in respect of the defendant’s Form 8 status.  That leads to a starting point for sentence of 36 months’ imprisonment.

9.  Defendant is entitled to a one-third discount so the final sentence of imprisonment for this case will be one of 24 months’ imprisonment.