HKSAR v. SUKHDEV SINGH

DCCC 188/2020

[2020] HKDC 729

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 188 OF 2020

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". He burgled a restaurant situated at the Ground Floor of a building and stole cash in the sum of $8,000.

Summary of Facts

2.  Mr. Lam (PW1) is the owner of a noodles eatery situated at Ground Floor, No.43 Boundary Street, Mongkok ("the Restaurant").  About 11:00 p.m. on 12 September 2019, he put $8,000 cash in a locked drawer at the cashier stand.  He then locked up and left the Restaurant.

3.  About 3:10 a.m. on 14 September 2019, Mr. Liu (PW2), chef of the Restaurant, returned to work and found the padlock of the rear door missing.  Thinking that PW1 might have forgotten to lock up, PW2 began his work in the kitchen.  About 2.5 hours later, PW2 turned on all the lights.  He found 2 drawers at the cashier stand having been pulled out and the cash inside missing.  He informed PW1 of the situation.  PW1 later confirmed that $8,000 cash went missing.

4.  CCTV footage of the Restaurant captured the defendant and 3 males breaking into the premises through the rear door; breaking open a drawer at the cashier stand; and taking a bag (which contained cash) from a drawer.  The footage also captured one of the culprits wiping their fingerprints off the drawers at the cashier stand.

5.  One of the fingerprints lifted from the inside of the drawers was found to be the defendant's.

Mitigation & Sentence

6. The defendant is 30 and has 4 conviction records, which included 2 "Theft" offences. He came from India and is a Form 8 holder. Defence counsel Mr. Whitehouse informed me that the defendant's wife is a foreign domestic helper in Hong Kong. They cannot live together since his wife is required to live in her employer's home.

7. In mitigation, Mr. Whitehouse submitted that the defendant has decided to return to India because his mother is ill. He has withdrawn his non-refoulement claim. His wife plans to move to India with the defendant after he finished serving his sentence. Mr. Whitehouse described the burglary in this case as disorganized and amateurish. No substantial damage was caused to the Restaurant and the cash stolen was not a significant sum. Mr. Whitehouse also asked that credit be given to the defendant for his non-prejudicial statement (NPS).

8. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in another country. I understand that the verification of a non-refoulement claim can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong.

9. As a Form 8 holder, although the defendant is unable to earn any income, his basic needs such as housing and food are provided for by the government and/or NGOs. In any event, being in financial difficulty (however serious) is no mitigating factor for committing a crime.

10. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[1]. By its nature as well as the circumstances of its commission, the present burglary offence clearly has a serious detrimental effect on the community at large. Mr. Whitehouse has fairly accepted that the defendant's immigration status constitutes an aggravating feature in terms of sentencing. Also, the crime was committed by the defendant and 3 males acting in concert, which is clearly another aggravating factor.

11. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I would increase the starting point to 36 months based on the 2 aggravating factors mentioned above. With the timely guilty plea, the sentence is reduced to 24 months.

12. I am aware that the defendant gave an NPS to the Police. Although his NPS did not result in any other culprits being arrested, the defendant's willingness to assist the law enforcement should be encouraged and recognized. I will grant him a further discount of 1 month, reducing his sentence to 23 months. Apart from the above, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 23 months' imprisonment.