HKSAR v. SHARMA RAHUL

DCCC 444/2022

[2023] HKDC 169

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of Burglary.

Facts

2.  Wang Hing Restaurant (the restaurant)  is situated at Ground Floor, No.13A Temple Street, Yau Ma Tei, Kowloon.  It opens for business from 3 p.m. to 12 midnight daily.  Its entrance is fitted with a roller shutter.

3.  Around 12 midnight on 8 November 2021, the restaurant was closed for business with its roller shutter half-lowered.  Around 2 a.m., while cleaning up inside the restaurant, the restaurant owner heard someone stepping into the restaurant.  He then saw the defendant walking into the restaurant and extending his hand towards the top of the refrigerator which was situated near the entrance.

4.  The owner shouted at the defendant, asking him what he was doing.  The defendant immediately took the tablet computer (the tablet)  on the top of the refrigerator and fled.  The owner gave chase.  The defendant threw the tablet on the ground near the restaurant while running away.  The owner eventually managed to catch the defendant at Hi Lung Lane next to Temple Street.

5.  An off-duty police officer happened to be passing by and helped the owner subdue the defendant.  The matter was reported to the police.  The tablet was recovered from the ground outside the restaurant.

6.  CCTV captured the defendant lingering outside the restaurant around 2:08 a.m. on 8 November 2021.  A minute later, he pulled the hood of his sweater over his head and entered the restaurant.  He then removed the cable connected to the tablet which was lying on the top of the refrigerator, took the tablet and fled about 8 seconds later.

Defendant’s Background

7.  The defendant is 31 years old.  He was born in India and was educated there.  He is single.  He came to Hong Kong in 2014 and is a Form 8 recognizance holder.

8.  Of his 17 previous convictions spanning from December 2015 to January 2022, 6 of them are for Theft, but none of them is for Burglary.

Mitigation

9.  It was explained on behalf of the defendant that at the time of the commission of the Burglary, he was living with his pregnant girlfriend, but he did not have the financial means to support her or his family in India.  Driven by his stressful financial condition and by greed, he committed the offence. Subsequent to his arrest, his girlfriend broke up with him.  About a month after that, she had a miscarriage.

10.  In his letter to the court, the defendant recounted his financial difficulties and the problems he had had with his then-girlfriend in more detail.  In expressing his remorse, he apologised for his misdeed and promised the court that he would not engage in crime again.

11.  Citing HKSAR v Sim Ka Wing CACC 450/2000, defence counsel submitted that the starting point for burglary of non-domestic premises with no aggravating or mitigating features is 2 ½ years’ imprisonment, and that a degree of planning and premeditation is already built into this conventional starting point.  In the present case, the tablet on the top of the refrigerator near the entrance of the restaurant appeared to be unattended and the defendant committed the offence out of momentary greed.

12.  Defence counsel admitted that the defendant being a Form 8 holder committing the offence is an aggravating factor and, citing HKSAR v Norena Guiterrez Cristhian Andres CACC 319/2014, suggested a 3-month enhancement for this aggravating feature.

13.  He went on to submit that the most significant mitigating factor is the defendant’s plea, for which he should be given a one-third discount in sentence.

14.  To give effect to the totality principle, the court was asked to give the defendant some allowance in sentence by reason of the fact that he had recently served a 4-month sentence in a West Kowloon Court case and was discharged from prison on 24 February 2022.

Sentencing considerations

15.  The burglary was committed by the defendant without breaking into the restaurant.  He simply walked into it through a half-open roller shutter when the restaurant was closed for business, and snatched the tablet which was lying close to the entrance.  There is no indication that he had any house-breaking tools with him at the material time, or that the burglary involved any degree of premeditation and planning.

16.  What he did was apparently exploiting the opportunity presented to him by the half-open roller shutter, and the proximity of the tablet to the restaurant’s entrance.

17.  In Sim Ka Wing, the Court of Appeal pointed out that the conventional starting point “can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

18.  In this case, the defendant can properly be described as an opportunistic burglar.  I would adopt a starting point of 21 months’ imprisonment for the offence.

19.  Commission of this offence by the defendant who is and was at the material time a Form 8 recognizance holder constitutes an aggravating factor for which an enhancement of the starting point should be made.

20.  In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, in discussing the amount of enhancement for this aggravating feature, the Court of Appeal had this to say:

…If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of enhancement other than to make the obvious comment that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one… [1]

21.  In considering the extent of enhancement for this aggravating feature, the defendant’s 17 convictions (6 of which are for theft)  since his arrival in Hong Kong play a relevant part because, compared with a Form 8 holder who is a first offender, such a conviction record underscores the need for deterrence and denunciation[2].

22.  I consider an enhancement of 6 months to be appropriate for this aggravating feature.  The starting point for the offence is therefore increased to 27 months’ imprisonment.  Given all the circumstances, I am satisfied that this enhanced starting point is a just and balanced one.

23.  The defendant’s personal circumstances, his financial situation and what happened between him and his then girlfriend do not justify his commission of the offence, nor do they in any way mitigate the gravity of it.

24.  His only effective mitigating factor is his early plea, for which he is entitled to a one-third discount in sentence.  His sentence after this discount is one of 18 months’ imprisonment.

25.  In respect of the West Kowloon Court case mentioned by defence counsel, I see no justification for reducing the present sentence on account of the sentence that the defendant had already served for that case which was totally unrelated to the present one.

26.  The defendant is sentenced to 18 months’ imprisonment.