HKSAR v. SANDEED SINGH AND ANOTHER

DCCC 151/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 151 OF 2017

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance Cap 210, and further charged with one count of handling stolen goods on their own respectively, contrary to section 24 of the Theft Ordinance Cap 210. The defendants pleaded guilty to their respective charges and admitted the facts, they were convicted accordingly.

Facts

Charge one

2.  D1 and another male was discovered peeping around the corridors of 4^th, 5^th, and 6^th floors of the building where Mr Zhang resided at about 07:30 hours on 8 October 2016.  One week later, at around 10:33 hours on 15 October 2016 D1 and D2 burgled Mr Zhang’s room and stole therein:-

(a) One suitcase, purple in color;

(b) One shoulder bag containing some garments of estimated value of $10,000, one security personal permit and some personal documents.

All these were captured by the CCTV installed in the building. The stolen properties were not recovered.

3.  Mr Zhang was sleeping inside his room when the burglary took place.

Charge two

4.  Between 13 October 2016 and 15 November 2016 the D1 has received stolen properties related to five thefts, one committed on 14 October 2016 and 27 October 2016 respectively, 2 committed on 14 November 2016 (between 17:00 hours and 21:00 hours, and at about 23:00 hours) and the last one on 15 November 2016 at about 06:00 hours.  The stolen properties with total value of $8,198 found at D1’s residence being:-

(a) One smartphone, golden “LG D855” valued at $3,300;

(b) One USB thumb drive “Vocana” valued at $100;

(c) One smartphone, black “Xiaomi IS” valued at $1,000 with a SIM card;

(d) One briefcase, black “FX” valued at $1,000;

(e) One wallet, brown “Polo” valued at $600;

(f) One letter addressed to one Mr Cheung;

(g) One letter issued by Manulife;

(h) One smartphone white “Samsung J7” valued at $2198 with a SIM card.

Charge three

5.  On 15 November 2016 D2 has received stolen property, one smartphone, silver Samsung S7 Edge valued at $5,500, related to a theft committed on the same day at around 01:00 hours.  The stolen property was found at D2’s residence.

The arrest

6.  D1 and D2 were arrested on 15 November 2016 at around 07:00 hours at the doorway of their respective residence.

Mitigation

D1

7.  The defendant aged 27, single with family in India.  He came to Hong Kong in 2014 and was on ISS assistance.  He had one previous shoplifting conviction in November 2016. 

8.  The week before the burglary he came to the place with another simply to look for his friends there.  The defendant indicated his plea at the earliest opportunity and he was sorry for his wrong. While acknowledging that there were some aggravating features existed, namely, commission of crime by two, and commission while awaiting the process of his immigration claim, Mr Parry for D1 submitted that the victim of the burglary was not alerted, the value of the stolen goods was modest, no proof of link with the underlining thefts related to the handling, the defendant committed the crime because he was pressed for re-payment of money borrowed from a friend and urged the court to consider the totality effect of the sentence and leniency.

D2

9.  The defendant aged 31, single with family in India.  He came to Hong Kong in 2014 and was on ISS assistance.  He had three previous shoplifting convictions in February, April and August 2016.

10.  The defendant only indicated his plea of guilty to his lawyer in August, which was about two months after the plea day on 6 June on which his case was set down for trial on 25 September with 4 days reserved.  Mrs Panesar submitted the defendant indicated his plea of guilty on his own initiative in August which was still substantial time before the trial, this was a reflection to his remorse and urged the court to exercise discretion to allow him the full 1/3 discount for his guilty plea.

11.  Mrs Panesar also acknowledged the usual starting point of 3 years for domestic burglary, and the defendant committed the crime while awaiting the process of his immigration claim, but submitted the defendant committed the crime because he was only on ISS assistance and had no one to turn to for assistance in Hong Kong.  He purchased the phone in question for $600 with the belief that it was a stolen item and urged the court for a concurrent sentence.  With his modest assistance from ISS, I have great reservation as to his mitigation related to the handling charge.

Sentence

12.  The conventional starting point for burglary of domestic premises is 3 years’ imprisonment.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. Same principle is applicable to domestic and non-domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.

13.  Charge one is a classic case of domestic burglary.  Although the burglary was committed by the defendants as a joint enterprise, the victim was not alerted.  The victim was inside the premises sleeping when the defendants entered his residence to steal.  The defendant took advantage of an unlocked door.  I consider adopting the conventional starting point of 3 years for charge one is appropriate in the present case.

14.  Whereas there is no tariff for handling stolen goods, all depends on the circumstances.  Handling is no less serious than the underlining theft, it should be noted that the maximum penalty for theft is 10 years’ imprisonment, while that for handling is 14 years’ imprisonment. Sentencing considerations include the nature of the underlining theft, how the goods were obtained, the type of the goods and the value of the goods.

15.  The burglary and the respective handling charges were clearly distinct and separate offences.  In the case of D1, one could tell by the stolen goods themselves (total value being $8,198) that they came from different victims and no fewer than 3 thefts could have been involved.  I considered the appropriate starting point for charge two is 18 months’ imprisonment.  In the case of D2 only one mobile phone valued at $5,500 was involved, I considered the appropriate starting point is 12 months’ imprisonment.

16.  Further, the fact that a person committed an offence whilst awaiting the processing of his immigration claim amounts to an aggravating factor.  In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 the sentence of a clear record defendant was enhanced by 3 months because of his refugee claimant status.  The Court of Appeal before up-holding the enhancement has analysed the reasoning in Sandagdorj Altankhuyag & another [2014] 1 HKC 206 and stated that:-

“Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.”

17.  The defence accepted that the fact that the defendants were Form 8 holder, awaiting the processing of their respective immigration claim, at time of the commission of the crime was an aggravating factor.  For this aggravating factor I enhanced the starting point of each charge by 3 months. 

18.  D1 and D2 indicated their plea of guilty at different stages.  Since September 2016, the new rule for discount for plea of guilty applied to reflect the principle that the value of a plea of guilty is greater the earlier it is given.  A defendant indicates his plea of guilty after the trial dates are fixed is to be afforded a discount between 25% and 20% of that taken as the starting point for sentence.  Where a defendant pleads guilty on the first day of the trial and thereafter, the discount would go down from 20%.

19.  The Court of Appeal in HKSAR v Ngo Van Nam CACC 418/2014 has considered the rationale for the policy of affording a discount to a defendant for a plea of guilty and the usual practice for cases transferred to District Court from Magistracy before they announced the new rule for discount.  One third discount is a great reduction in the sentence, the revised guideline seeks to encourage those defendants who are aware of their guilt to indicate their plea in the earliest stage of the proceedings, because this serves the public interest to conserve the resources of the community.

20.  D1 indicated his plea at the earliest opportunity, he entitled to 1/3 discount.  I do not consider there to be any mitigation factor that called for further deduction. However, taking into account of the totality principle, I would order the sentence to run partly concurrent and partly consecutive making a total of 32 months’ imprisonment.

21.  D2 indicated his plea after his case was set down for trial.  The prosecution was informed his intended guilty plea after fiat counsel was briefed to handle his trial.  According to the new guideline, he only entitled to 20 to 25% discount.  After consideration, I allow not less than 25% discount for his plea of guilty.  I do not consider there to be any mitigating factor that called for further deduction.  However, taking into account of the totality principle, I would order the sentence to run partly concurrent and partly consecutive making a total of 33 months’ imprisonment.

Order

D1

22.  Charge 1   sentenced to 26 months’ imprisonment;

Charge 2 sentenced to 14 months’ imprisonment, 6 months consecutive with charge one; making a total of 32 months

D2

23.  Charge 1   sentenced to 29 months’ imprisonment;

Charge 3 sentenced to 11 months’ imprisonment, 4 months consecutive with charge one; making a total of 33 months