HKSAR v. SIDHU BRAR GURMUKH SINGH

DCCC 80/2020

[2021] HKDC 233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 80 OF 2020

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Reasons for Sentence

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1.  The 2nd defendant has pleaded guilty to a single charge of attempted burglary. He has agreed a summary of facts. The attempted burglary took place at 5019 Premium Factory Japan, 46 Graham Street, Central.

2.  The basis on which the 2nd defendant was convicted was on the basis of this summary of facts and those facts show that the defendant was seen with another male wandering at the sitting-out area at Graham Street, which is next to a wall enclosing the outdoor dining area of the restaurant.  The 2nd defendant climbed over the wall to the outdoor dining area of the restaurant and another male followed him.  The 2nd defendant shone a torch at the rear door and then the other male used a tool to knock on the door.  They then left the outdoor dining area, climbed back to the sitting-out area to smoke, and were intercepted by police.  Those are the facts on which the 2nd defendant was convicted. 

3.  There was no sign of ransacking inside the restaurant and it is clear that there is no allegation that the 2nd defendant had ever gained entry into the premises.

4.  The 2nd defendant made admissions under caution in a video recorded interview.  He said he had been near the restaurant with another male.  They climbed over the wall.  They attempted to open the rear door and failed.  They wanted to see if they could collect empty bottles in the restaurant for selling, and they went back to the sitting-out area where they were arrested.

5.  The 2nd defendant is a man of clear record.  His antecedents show that he is a Form 8 holder, which may be relevant to any sentence I impose.  The defendant is convicted on the basis that he was looking to see if there was anything of value, particularly empty bottles, that he could sell.  The defendant is a family man.  He has a daughter who only is 1 year old.

6.  Turning to the calculation of the starting point for sentence, this is an attempted burglary of a non-domestic premises. Normally the starting point for sentence for such an offence will be 30 months’ imprisonment.  The defendant has indicated a plea from an early stage.  There will be a one-third discount for sentence.

7.  In mitigation, it is put forward that the court could adopt a lower starting point than 30 months’ imprisonment for this particular attempted burglary, on the basis that it was an opportunistic burglary or an opportunistic attempt at a burglary, that the defendant never gained entry into the premises, that the offence shows no clear premeditation. As I said, it was taken as an opportunity that showed itself to the defendant after he climbed over the wall. 

8.  Secondly, it is said that the court should not enhance the sentence on the basis that the defendant is a Form 8 holder, that not every case results in enhancement on this basis and this case does not have a large and significant impact on Hong Kong’s reputation because no property was stolen.

9.  As far as the starting point for sentence is concerned, I am going to take a starting point here a 24 months’ imprisonment. 

10.  I take into account some of the matters raised in mitigation by the defence.  It was on the basis that the 2nd defendant has admitted to a joint enterprise burglary.  That means there will be an enhancement for that basis to 27 months’ imprisonment.  There will be no further enhancement in respect of the defendant’s Form 8 status.  I agree this case could not be said to have any significant impact on Hong Kong’s reputation.

11.  The defendant is entitled to a one-third discount from that, which leads to a sentence of 18 months’ imprisonment for the 2nd defendant today.