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DCCC 516/2022
[2023] HKDC 324
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 516 OF 2022
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| Present: |
Miss Joyce Yan Poon, Public Prosecution of the Department of Justice, for HKSAR |
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Mr Antony Michael Delaney, instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. The defendant was charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210, to which he pleaded guilty and was convicted accordingly.
Admitted facts
2. At all material times, the defendant was a Form 8 holder in Hong Kong. The Health Guard International Medical Centre is located on the Ground Floor, No 28 Cheung Sha Wan Road, Sham Shui Po, Kowloon. The medical centre comprised of the ground floor and the mezzanine floor. At around 7.20 pm on 12 November 2019, after checking things were in order, the owner Mr Kum left the medical centre.
3. At around 8.30 am the next day, when Mr Kum returned to the medical centre, he found the main glass door was smashed and there were signs of ransacking. Upon checking, cash of $100 and a gold ornament worth $800 kept in the glass display cabinet on the mezzanine floor were missing.
4. The defendant’s left forefinger and middle-finger prints were found on the screen of the television set hung near the entrance on the ground floor. The defendant’s left forefinger print was found on the glass door outside the glass display cabinet on the mezzanine floor.
5. On 16 August 2021, the defendant was charged for burglary.
The defendant’s background
6. The defendant was born in India in 1989. He is now about 33 years old. He is married and was living with his wife and his mother in India. He came to Hong Kong on 13 March 2014. He has a total of six previous records in Hong Kong, including three shopliftings; one theft from vehicle; one possession of arms or ammunition; and one burglary.
Mitigation
7. Mr Delaney filed a written mitigation submission on behalf of the defendant. It is submitted that, although the defendant is charged alone and without reference to any other, he was with his then roommate at the material time.
8. It is submitted that the defendant himself did not take the stolen items but the roommate did, when at the time the defendant was acting in a supporting role. The defendant understands that acting with others is potentially aggravating but wishes to be frank with the court, and makes it clear that he was acting in response to the suggestion of his roommate.
9. It is submitted that the burglary was wholly opportunistic and amateurish without any sophisticated planning. The aggravating feature of being with another should be balanced by the fact that this is an admission against self-interest, as there is no such suggestion of any other party by the prosecution.
10. It is also submitted that the fingerprint report crucial for this prosecution is dated 7 April 2020 and this burglary case could have been processed at that time. The arrest date for this offence is however 16 August 2021, which, in the defence submission, evidences unaccounted delay in prosecution.
11. Mr Delaney supplemented this point in court today by submitting that, since May 2020, the defendant after having served his sentence for his last conviction had been discharged from the Correctional Services Department. He was then transferred to be detained by the Immigration Department, pending his deportation order. It was however not until 14 months later in August 2021 that the police went to arrest him.
12. Miss Poon, for the prosecution today, fairly confirmed the above and helpfully prepared a chronology of events, MFI-1. It is confirmed by that chronology of events that on 30 May 2020, the defendant was discharged from the Correctional Services Department and was transferred to the Castle Peak Bay Immigration Centre for detention.
13. It was not until 11 August 2021 that the Immigration Department conducted record search in preparation for the issuance of deportation order against the defendant and discovered that the defendant was a wanted person. The matter was then reported to the police. Eventually on 16 August 2021, the police arrested the defendant who was then under the Immigration Department’s custody.
14. In order words, as the prosecution confirmed today, that 14-month period in between when the defendant was being kept in remand by the Immigration Department would not be counted for the purpose of section 67A of the Criminal Procedure Ordinance, Chapter 221, which provides that the length of a sentence of imprisonment shall be treated as reduced by the period during which a person was in custody by an order of a court made in connection with the proceedings relating to the sentence or the offence.
15. I shall deal with this at my final determination of the sentence.
16. As to the defendant’s background, it is accepted that he came to Hong Kong from India in 2014 and is a Form 8 holder. He has been receiving financial assistance from ISSHK in a total sum of HK$3,000 per month since then and had been living in a cubicle unit in Sham Shui Po with his roommate.
17. Having been away from his family in India for so long, the defendant informed the Immigration Department by way of a letter on 10 June 2021 that he wished to go back to India.
18. The Immigration Department then issued a warrant for detention against him on 7 February 2022, such warrant was renewed continuously until 4 March 2022 when the Security Bureau issued a deportation order against him.
19. As such, it was said that the defendant is now also detained pending removal or deportation from Hong Kong under section 32(3) of the Immigration Ordinance, Chapter 115.
20. The defence accepts that an immediate imprisonment of a starting point of 2 years and 6 months is a normal sentence for non-domestic burglary. The defence submitted a case authority, HKSAR v Fan Kit Hung [2009] 6 HKC 314, and submitted that only two factors, namely, the offence being committed by two or more people and the defendant having previous similar convictions are relevant to this case.
21. Apart from those two factors, it is submitted that this is in fact a very small scale burglary and the offence was not planned or directed at objects of high value. Apart from the glass door of the medical centre, no substantial damage was done. Nobody was at the premises at the time and hence no one was injured.
22. The defendant was an opportunist burglar, who acted upon the invitation of his roommate who told him the door of the medical centre had already been broken. It was the roommate who ransacked the centre.
23. It is accepted that the defendant has six criminal records in total including one burglary and other offences of dishonesty. He is a recidivist since arriving in Hong Kong in 2014.
24. The defendant was arrested on 16 August 2021 that would be slightly more than a year and six months up to now. The defendant is genuinely remorseful for his latest act as can be seen from his plea of guilty tendered at the earliest opportunity.
25. Once deported, he will be unable to step into Hong Kong again. This is also a form of punishment to the defendant already and should be taken into account. The defendant positively wishes to return to India as soon as possible. Finally, it is submitted that the court may consider a lower sentence than the norm.
Sentence
26. As rightly submitted by the defence, the usual starting point for non-domestic burglary is one of 2 years and 6 months’ imprisonment, and that is for a first offender of full age (see AG v Lui Kam Chi [1993] 1 HKC 215)
27. Although the defendant has six previous criminal convictions and one of them was a burglary and a few shopliftings or theft from vehicle, I do not consider him to be a repeat offender and therefore would not adopt a higher starting point for that.
28. This is however a two-men burglary as admitted by the defendant, which makes it a more serious offence than usual and should be reflected in the starting point. I therefore decided to adopt a starting point of 2 years and 9 months, that is, with an enhancement of 3 months from the usual starting point.
29. There is also an aggravating factor arising from the defendant’s Form 8 status, which should be reflected in the sentence. It was as early as in 2013 where the Court of Appeal observed in HKSAR v Sandadorj Altankhuyag and Another [2014] 1 HKC 206, had a commission of an offence by a foreign national who was the holder of a Form 8 Recognisance could constitute an aggravating factor and could have his sentence enhanced.
30. It is because a foreign defendant, when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government and his crime has affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community.
31. Since that judgment, the Court of Appeal had on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were Form 8 holders. The enhancement was usually in the region of several months or around a year.
32. In HKSAR v Don Amarasinghalage Don Chandra Janaka, CACC 377/2016, reasons for judgment given on 25 October 2017, where the appellant was convicted of trafficking in about 25 grammes of ‘Ice’, the Court of Appeal when sentencing the appellant afresh, enhanced the starting point by 9 months to reflect the appellant’s status as a non-refoulement claimant at the time of committing that trafficking offence.
33. Also as stated in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court of Appeal in paragraphs 34 and 35 of the judgment observed that it was neither prudent nor possible to issue sentencing guidelines for such cases of Form 8 holders. Such enhancement was best left to the discretion of the sentencing judge or magistrate. But obviously, the greater the impact of the particular offence on the community at large and of Hong Kong’s reputation for order and security, the greater the enhancement.
34. In that case, the applicant was convicted of trafficking in a substantial amount of cocaine and for that primary offence, the sentencing judge adopted a starting point of 8 years and 2 months. The enhancement to reflect the applicant’s Form 8 status for 1 year and 10 months was nevertheless found to be too severe by the Court of Appeal and the enhancement was eventually reduced to one of 1 year’s imprisonment after appeal.
35. In a more recent decision, HKSAR v Butt Muhammad Gulzar[2020] 3 HKLRD 805, reasons for judgment handed down on 17 July 2020, the Court of Appeal at paragraph 32, when endorsing the principle that the amount of enhancement should be left to the sentencer’s discretion, emphasised that the enhancement must be substantial, otherwise it would have no deterrent value and that it generally should not be less than 6 months for serious offences.
36. The Court of Appeal then, in the same paragraph 32 of the judgment recited its early observations in another case, HKSAR v Singh Gursevak [2019] 2 HKLRD 274. The amount of the enhancement would reflect the court’s assessments of the seriousness of offence and the severity of the adverse impact that the offence had on Hong Kong. Making the assessment would entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation. The more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. 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.
37. I noted that since the defendant’s arrival in Hong Kong in 2014, he had committed a total of six offences on six occasions, excluding the current offence. That should be a factor to be considered when deciding on the extent of enhancement.
38. Having considered the nature of the offence, the circumstances under which it was committed and the fact that the defendant had repeatedly reoffended during his stay in Hong Kong, I am of the view that the appropriate enhancement to reflect the defendant’s Form 8 status should be one of 6 months.
39. That brings the starting point of 2 years and 9 months or 33 months to 3 years and 3 months or 39 months. The defendant’s timely plea in this case should earn him the full one-third discount. The sentence would therefore become 26 months’ imprisonment.
40. Finally I take into account the fact that the defendant had been kept in custody by the Immigration Department for 14 months unrelated to this case and decided to exercise my discretion to reduce the final sentence by 8 months.
41. The final sentence is one of 18 months’ imprisonment and I so order.
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