HKSAR v. NAYAK SATYA SIDHI AND ANOTHER

DCCC 791/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 791 OF 2016

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Reasons for Sentence

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Introduction

1.  This is a case of non-domestic burglary. The burglary in question occurred some 6 years ago at a boarding school in Clear Water Bay Road, Sai Kung, New Territories.  

2.  The culprits (Three of them) were the boarders of the school. Today before me are two of them who pleaded guilty to one single charge of burglary.

Facts

3.  On a day after school between 13 May and 17 May 2010, three burglars sneaked into the Health Education Centre of the school and stole cash $1,300 from a small metal safe.

4.  The Centre was connected to the cafeteria of the school, and the entrance to the Centre was opened all day. However, students of the school were not allowed to enter the Centre during non-school hours.

5.  Madam Chan, a staff member of the Centre, had put the cash into a metal safe whose lock was broken at the time. She placed the safe in a locked drawer of her desk before getting off work on 13 May 2010.

6.  4 days later on returning to work, she discovered that the drawer was broken and the cash inside the safe was missing. A report was made to the police.

7.  Police came to investigate into the case. They were able to lift 3 fingerprints from the bottom of the broken drawer and D1’s fingerprints were among them.

8.  D1 didn’t continue his study at the school in 2010 and left Hong Kong later that year. When he returned in June 2016, he was arrested at the airport.  

9.  He admitted to the police during an interview that he and 2 classmates (whose names he had given to the police) had sneaked into the Centre. They pulled open the locked drawer by force, took away the cash from the safe, and shared it among themselves.

10.  When D1 was being taken back to the school for a reconstruction of the incident, he chanced upon D2 in the school premises, he immediately pointed out D2 to the police and as a result of which D2 was arrested. In a subsequent interview, D2 confessed to the burglary.

11.  As far as the third culprit was concerned, the only information available was that he had left Hong Kong for many years.

Mitigation

12.  Both defendants, who have a hitherto clean record, are now in their early twenties. At the time of the offence, they were in Grade 11, equivalent to Form 5 at local school.

13.  The court was told that D1 was not doing very well in the examination in 2010 that he had to go back to India to further his studies. While in India, his mother had fallen ill, so he had to study and at the same time take care of her. His mother, however, passed away in 2014.

14.  In his letter to the court, D1’s father said that after D1 having performed the rituals which lasted for one and a half year for his mother’s “Moksha” (liberation and release), he booked an air ticket for D1 to return to Hong Kong to surrender to the police.

15.  D1 said in his letter that at the time of committing the crime, they were juveniles and ignorant, and now he had become more mature and wanted to build a good career for himself. Before he can do that, there’s one unfinished business he needs to settle, i.e. the crime he committed a few years before. He said he was mentally ready to surrender to the police, but the police took him under custody by surprise at the airport.

16.  There are also letters from D1’s former teachers as well as employer who all have a good word to say for him.

17.  D1 is now a full time student at HKUSPACE doing a Higher Diploma course in Accounting; whilst D2 is a second year student at Adventist College studying Psychology (a bachelor’s degree).

18.  Counsel for D2 emphasized that D2 committed the offence at a young age, only 16 at the time. He had not used any tools to break in because the window of the Centre in question was opened, they just sneaked in. It was a one-off offence, counsel said, and very likely it would not be repeated.

Reasons

19.  There are sentencing guidelines for this type of offence- in the absence of aggravating features, for burglary in domestic premises, a sentence of 36 months is to be considered; for non-domestic ones, it is one of 30 months.

20.  The Appellate Court, however, has said in Tong Fuk Sing CACC 216/1999 that where Court of Appeal has laid down guidance for sentence, it is not sufficient for sentencing judge merely pay lip service to it before departing from it- sound reasons for such departure should be given.

21.  There is one significant feature in the instant case which, in my view, would tip the balance in favour of the defence, that’s the burglary could be described as opportunistic in nature.

22.  It is clear from the facts that the Centre in question was not an enclosed place in the sense that there were no locked doors or anything like that- easy to gain access- the entrance to the Centre was not secured in any way against trespassers, let alone burglars. Although the defendants gained access through an open window, they could have gone in by the entrance.

23.  The opportunity was there and the defendants who lived in the school as boarders simply took advantage of it. I would therefore treat this case as an opportunistic burglary, which would enable me to depart from the usual sentencing guidelines.

24.  Both defendants through their counsel urged the court to consider putting them on community services. The court adjourned the matter for such reports to be prepared for the defendants.

25.  Now the reports are before the court, it is suggested that D1 is suited to community service order while D2 is not, the reason being that D2’s student visa lasts until the end of August 2017, with only 10 months left, the officer is of the view that D2 might not be able to complete the work which would otherwise require a year to complete. The other reason is that the order might exert extra stress on D2 in addition to his present studies.

26.  I do not think that these are valid reasons for such sentencing option to be denied to D2. I am minded to place both defendants on community service order on grounds of the following:

(1)- Both defendants are first offenders;

(2)-At the time of committing the offence, they were young and inexperienced;

(3)-They have shown genuine remorse;

(4)-They are now full-time students at some local education institutes pursuing their studies in some professional courses;

(5)-The unlikelihood of re-offending;

(6)-The opportunistic nature of the burglary.

27.  With their consent, I will make the community service order for each of the defendant in the following terms:

“Both defendants are to do unpaid community work for 240 hours and such work need be completed within one year from the date of the order”

28.  Both defendants have indicated earlier on that they are willing to compensate for the loss of the school, which is the amount of cash stolen ($1,300),  I therefore order that each defendant should pay the school a sum of $650 as compensation (the money is to be taken from their bail).