HKSAR v. LAKHVIR SINGH AND ANOTHER

DCCC 674/2019 & DCCC 253/2020 (Consolidated)

[2020] HKDC 956

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 674 OF 2019 AND 253 OF 2020 (CONSOLIDATED)

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 and D3 pleaded guilty to one charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. D2 pleaded not guilty to one charge of “Handling stolen goods”, and was acquitted after trial.

Admitted Facts

2.  Lee Kim Ching (“PW1”) was the owner of APEX SPORTS COMPANY LIMITED (“the shop”) which was a sports shop on Ground Floor, Nos. 75-77 Fa Yuen Street, Mong Kok, Kowloon.

3.  The shop was closed and locked by PW1 at around 2030 hours on 27 May 2019 after which PW1 left.

4.  On the 28 May 2019 at around 1100 hours the anti-theft alarm of the shop was triggered and when PW1 returned to the shop at about midday of the same day, he found that there were signs of ransacking in the storeroom near the back entrance of the shop.

5.  After checking the shop PW1 found that items, including shoes, caps, gloves, headbands and wristbands, worth approximately HK$15,308 were missing from the shop’s storeroom.

6.  At all material times, D1 and D3 entered the shop as trespassers and had stolen property therein. 

Criminal Records

7.  D1 has three criminal conviction records, all related to the offence of “Theft (Shoplifting)”.  He was last convicted on 26 October 2016. He was sentenced to a total of 12 weeks and 8 days for the three theft charges.

8.  D3 has twelve convictions from seven records.  He was last convicted on 25^th January 2018 for two charges of burglary, his only burglary conviction record.  He was sentenced to a total of 30 months’ imprisonment. 

Mitigation

D1

9.  D1 was born in India, on 17^th March 1994. He was 26 years old at the date of sentence. As indicated in the antecedents he arrived in Hong Kong in 2015 and is a Form 8 non-refoulement claimant.  D1 does not intend to pursue his refugee claim and wishes to return home to his parents in India, as soon as he is released from prison.

10.  His mitigation is that having been unable to work and wholly dependent upon government assistance, D1 took the opportunity to steal the items to sell and make some money.  D1 did not profit from the offence. The figure of HK$15,308 is assumed to be the sale value of the items stolen and which appeared to have been recovered.

11.  The burglary was on an unattended, commercial premises and although it is said there was some evidence of ‘ransacking’ in the storeroom there did not appear to be any damage.

D3

12.  D3 is 35 years old, born on 7^th June 1985.  Born in India, he arrived in Hong Kong in 1996.  He is a Hong Kong permanent resident.  His parents are residing in India, his brothers in Hong Kong.  He is a father of a 3 ½-year-old girl, who is living in the Philippines.

13.  He is educated up to primary school in Hong Kong (California Primary School).  He is a maintenance worker (casual employment), earning approximately $11,000 monthly.

14.  He is suffering from bad vascular vein problems in his right leg.

15.  Upon his release from prison, D3 undertook employment loading and unloading containers. This was in 2019. Then as a result of the 2019 civil disturbance which was followed by the Coronavirus problems, he lost his job. Due to the reasons outlined and his health problems, D3 was unable to find fresh employment. As his daughter was in need of financial support, in desperation, D3 committed the offence.

16.  It is to be noted that the burglary was committed in a commercial (non-domestic) premises which normally attracts a starting point of 2 years 6 months’ imprisonment, when there are no aggravating factors.

17.  The Defendant made a formal offer to be a prosecution witness against D2 in the present consolidated cases and so he did.

Sentence

18.  The Court of Appeal had set down clear guidelines in sentencing cases of burglary.  For burglary of commercial premises, the appropriate starting point should be 2.5 years’ imprisonment: R v Wong Man[1].

19.  In HKSAR v Cheng Wai Kai[2], Yeung JA set out the following aggravating features:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.”

20.  In HKSAR v Junaid Ahmed [2018] HKCA 159, [2018] HKCU 939, the Court of Appeal considered that an accused being a mandated refugee is an aggravating factor; starting point enhanced from 30 to 33 months’ imprisonment. Where, at para. 21 the court held:

“We are satisfied that the judge was entitled to treat the appellant’s immigration status as an aggravating factor and enhance the starting point on the burglary charge by three months. The offence committed by the appellant is certainly a serious one that would affect the community at large and tarnish the reputation of Hong Kong as an orderly and safe city.”

D1

21.  D1 pleaded guilty to one count of burglary in a commercial (non-domestic) premises.  The offence was committed by more than one person, and D1 is a recognizance holder.  I consider these are aggravating factors.  I will adopt a starting point of 33 months.  D1 pleaded guilty at the first instance and is entitled to ⅓ discount.   There is no other reason for me to further reduce his sentence.  Financial hardship is not a reason for me to reduce sentence.  Therefore, D1 is sentenced to 22-month imprisonment.

D3

22.  D3 pleaded guilty to one count of burglary in a commercial (non-domestic) premises.  It was committed by two people.  Further, D3 has two previous burglary convictions.  I consider these are aggravating factors.  Therefore, I am of the view the starting point should be 33 months.  D3 pleaded guilty at the first opportunity and is entitled to ⅓ discount. 

23.  D3 gave evidence against D2.  In considering whether to give any further discount to D3 for his assistance, I have considered Z v HKSAR[3]. The policy of the courts to recognize useful assistance to the authority in mitigation sentence is based on the public interest.  A number of factors should be taken into account, as outlined in paragraph 13 of the judgement. 

24.  In HKSAR v W[4], Stock VP noted in paragraph 8:

“It has for long been the approach in this jurisdiction not to accord credit for information which in the event bears no fruit”. He further noted in para　11　“where information provided in fact leads nowhere, the system opens itself to abuse if credit is given merely for the provision of detailed and specific information which in the event bears no fruit. And "fruit" in such a case is not produced by mere identification without the assistance of the accused in actually securing, directly or indirectly, the prosecution and conviction of the person concerned.”

25.  D3 gave assistance to authority and evidence against D2.  Mr. Donald, on behalf of D3, urged the court to give him some discount despite the fact that his assistance did not return a conviction.  The policy for discount, as stated earlier, relates to useful assistance which bears “fruit”.  However, the court rejected D3’s evidence and D2 was acquitted.   It is because D3 gave different versions of the same event to police and to the court.  I do not find he gave truthful and reliable information.  I am of the view D3 is not entitled to further discount. 

26.  I find no other mitigating factor for me to reduce the sentence.  His financial hardship and inability to find employment are not reasons for me to reduce sentence.  Having given D3 full credit for his plea of guilty, I reduce his sentence to 22 months’ imprisonment.