HKSAR v. PUJARA PRAKASH KHUSHALDAS

DCCC 966 & 1186/2012 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 966 & 1186 OF 2012 (CONSOLIDATED)

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Reasons for Sentence

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1. Defendant, you have pleaded as D1 in this case and initially you pleaded not guilty to burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2. However, you did plead guilty to one offence of failing to surrender to custody, contrary to sections 9(L)(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

3. After viewing the CCTV footage and prior to any actual evidence being called, you amended your plea to one of guilty in respect of the 1st charge.

4. You admitted the facts and I convicted you.

5. The accomplice, who is named in the indictment here as D2, had been dealt with on an earlier occasion by another court.  I do not intend to make any comment about that matter.

6. The facts were as follows.

7. The premises in question was a vacated pub at 106 Boundary Street, Kowloon.  The person in charge of those premises, whom I will refer to as “PW1”, was the employee of a property company which owned those premises.

8. The premises were frequently visited and inspected.  Indeed, on 10 August of last year at approximately 4 pm, PW1 inspected those premises and found them to be in order.

9. At around 8 am on 13 August of last year, he received a call to say the main door was open and a foreigner was sitting outside.  He made a report to the police.

10. At about 8.10 am, police arrived outside the pub.  They found the main door to be seriously damaged and prised open.

11. You were outside the pub.  You had a large spanner concealed beneath an umbrella on the ground beside you.  Upon questioning, you said you had come from Tsim Sha Tsui and, being drunk, took a rest there.

12. When police entered the pub, they found your accomplice, Mr Amjed Ali.  Both of you were arrested.  Both of you remained silent upon arrest and caution.

13. CCTV footage which was viewed by the court showed you at the scene from about 0507 hours, keeping look outside the premises, prising the door and entering the pub.

14. This burglary was a joint venture. 

15. You failed to surrender to bail at this court - that is, the District Court - on 30 October of last year. A warrant was issued for your arrest and this was executed on 6 November.

16. On arrest, you remained silent. 

17. You admitted to six previous convictions on five occasions.  Five of those convictions involved crimes of dishonesty.  However, I did note that your last conviction was some 11 years ago.

18. Mr Yuen, as is his custom, entered comprehensive mitigation on your behalf.  He told me that you accepted the contents of the antecedent statement, save for two matters, the first being that you and your two children have now been abandoned by your wife so you are separated.  The children are now cared for by your mother who is aged 65 and resident in Hong Kong.  Also, and perhaps of less importance, is the fact that in the past you had been employed as a driver. 

19. He told me that you accepted the criminal record but re-emphasised that the last conviction was some 11 years ago when you were aged 22.  You are now 33 years of age.

20. He reminded me that you had pleaded guilty immediately after the viewing of the CCTV footage.

21. Referring first to the burglary itself, Mr Yuen pointed out that the pub in question had been vacant since 2007.  Nothing was stolen from there, as there was nothing to steal.

22. He submitted to me the case of HKSAR v Chau Man Ying, CACC 439/2011, where a sentence of 2 years’ immediate imprisonment was reduced to an actual sentence of about 8 months.  He said this indicated a starting point of approximately 12 months.

23. However, that does not seem to be correct, because when I read the authority, it would seem that this sentence was imposed after a trial, so the starting point was even less.  It was the actual sentence imposed.  I will again refer to that authority at a later stage.

24. Mr Yuen submitted that the pub itself should not be viewed as a commercial premises, in view of the fact it had been vacant for five years and was derelict.

25. I find no fault with that submission and agree entirely.

26. Realistically, he accepted that it was an aggravating factor that two persons were involved in the burglary.  He submitted that this should mean an increase in the starting point of about 2 months.

27. He went on to submit further points in mitigation. 

28. He suggested that the poor quality of the CCTV, especially that of Camera 8, meant that had you maintained your plea of not guilty, there was a realistic chance of an acquittal. 

29. Also, he submitted that the CCTV footage did, in fact, show you were not the prime mover and he suggested that this was an opportunist burglary, despite the presence of the large spanner.

30. In respect of the absconding offence, he said you accepted that you had failed to return.  However, you had only been at large for some seven days, that what had occurred is this:  that you had been contacted by the police to come to court.  You had done so.  You had arrived here, I think, approximately just after 10.  Trying the information desk and several courts, you had failed to locate that courtroom and so you had left.

31. He also suggested that, applying the principle of totality, that the two offences should attract prison sentences which were concurrent.

32. I turn now to the sentence itself.

33. I entirely agree that this charge should not attract the usual starting point for burglary of commercial premises.

34. Indeed, this case could have been adequately dealt with by the Magistrates Court.  There is absolutely no reason why it was referred to District Court.  The premises themselves were clearly derelict.  This would have been obvious to anyone.  They were awaiting refurbishment and redevelopment, and, clearly, there was nothing therein that I could see from the photographs worth stealing.  Indeed, nothing was stolen. 

35. Therefore, the usual starting point for commercial premises of 30 months should not apply.

36. The case of Chau Man Ying, in my opinion, was decided on its particular facts.  It is, in my opinion, highly supportive of the fact that one should not in these circumstances take the normal starting point, but does not get a tariff.

37. Here, we have clearly a burglary by two men acting in concert.  The burglary itself was clearly effected by severe damage to the door - that is, breaking and entering.  You were found in possession of housebreaking tools, namely, the large spanner.

38. I would also disagree that the CCTV footage was of poor quality.  It may have been difficult to define each and every act that took place, but the overall impression and the overall viewing of it clearly showed two men acting in concert to burgle premises.

39. Whilst it is always your right to put the prosecution to strict proof, your change of plea was a very sensible one and, despite coming at a somewhat late stage, I will maintain my promise to you that you will have the full one-third discount.

40. Two matters weigh with me:  the first is that it was indicated that Mr Yuen would need to take instructions after the viewing after you had seen the CCTV, which is your right, and secondly, no witnesses had actually been called, so the trial had barely started.

41. As I say, having viewed that CCTV footage, it was clear beyond peradventure that there were two men acting in concert to effect this burglary.

42. I note you are a man of undistinguished record, but that you have kept out of trouble for 11 years.

43. The following sentences will be imposed:

(1) in respect of the 1st charge, I take as a starting point 18 months’ imprisonment, reduced to 12, for your plea of guilty;

(2) in respect of the 2nd charge - that is, the absconding - a starting point of 9 weeks’ imprisonment, reduced to 6.

44. These will be served consecutively.

45. In my opinion, it would be wrong in principle to make all or part of it concurrent, as these are distinct and separate offences.

46. Even if I go as far as accepting that you did attend at the District Court, it is very difficult to see why you could not locate the courtroom - and even if that is the case, then you had a clear duty to make your way to the police station where you had been charged and surrender yourself to the police.

47. Therefore, that would be served consecutively, making a sentence of 12 months and 6 weeks, and finally, I would like to thank counsel for their assistance in this case.