HKSAR v. GADARA JASPAL SINGH

DCCC 869/2017

[2018] HKDC 108

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 869 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges of burglary[1].

Summary of facts

2.  The defendant burgled the same non-domestic premises on 17^th and 19^th July 2017, stealing copper water pipes and water meters. The cost of repair was around $5,000 and $10,000 respectively.

3.  The premises in question is an open air backyard surrounded on three sides by the building at 186C Hai Tan Street, Sham Shui Po. There is a metal door in the 1 storey high wall of the backyard that opens into a rear lane. At the material time, red flooring tiles, copper water pipes and water meters were installed in the backyard.

Charge 1

4.  At around 10:30am on 17^th July 2017, Mr Chan, the chairperson of the Owners’ Corporation of the building, noticed that a copper water pipe and a water meter had gone missing from the backyard. The owner of the backyard was notified and the matter was reported to the Police.

Charge 2

5.  At around 1:35pm on 19^th July, Mr Chan looked out of his residence at the building and saw the defendant pulling at some copper water pipes in the backyard. He called the Police.

6.  Police officers arrived within minutes at the rear lane and intercepted the defendant.

7.  Upon search, 3 copper pipes, 1 water meter with copper pipe; 4 pairs of pliers, 1 handsaw and one other pair of pliers were found inside the nylon bag that the defendant was carrying.

8.  Under caution, the defendant admitted that he had taken the copper water pipes, and he brought the Police officers to where he dismantled the pipes in the backyard. The defendant was arrested for this burglary.

9.  Under caution, the defendant told the officers that he had also stolen from the same place two days earlier because he needed money for food.

10.  In subsequent video recorded interviews, the defendant claimed that the door to the backyard was open on both occasions. This claim is supported by the evidence of the staff of the owner of the backyard, Ms Chan, who said that the door might have been opened by estate agents or potential tenants who would visit their premises.

11.  The defendant claimed that only one pair of plier belonged to him. He also claimed that he had picked up the 4 pairs of pliers and the handsaw found in his nylon bag from the backyard. This claim is, however, contradicted by Ms Chan’s evidence that no tools, including pliers, were placed in the backyard.

Previous convictions

12.  The defendant has 11 convictions from 6 court appearances. Three of those convictions were for theft.

13.  The defendant was last convicted on 19^th June 2017 for 2 charges of criminal damage and one charge of theft. He was sentenced to a total of 16 days’ imprisonment for those three offences. The defendant was last released from prison on 27^th June 2017.

14.  The defendant committed the present offences 20 and 22 days, respectively, after his last release.

Mitigation

15.  The defendant is 32. He was born in India and came to Hong Kong when he was 12. The defendant received education in Hong Kong up to primary 5 level.

16.  The defendant’s parents are still in India, but his 3 elder brothers and 1 elder sister are residing in Hong Kong. He is now single, residing sometimes with his elder brothers, sometimes on his own.

17.  The defendant had previously worked as a recycle worker in the Fanling district earning $500 per day when work is available. The defendant has been suffering from varicose veins since  March 2017, as a result he would bleed when he worked, affecting his work and income.

18.  The defendant has also been suffering from epilepsy for 4 years and is reliant on medication.

19.  Mr Chan told the court that the defendant had gotten $45 from selling the things he stole on the first occasion. He had spent the money in 2 days. He went back to the same premises and stole again for money to buy food. He was too embarrassed to ask his brothers and sister for help.

20.  Mr Chan pointed out that the facts suggest that the door to the backyard was left open by others, and that the backyard itself was un-occupied at the time. The defendant had cooperated with the Police when he was caught red-handed and volunteered his commission of the earlier offence.

21.  Lastly, the defendant wishes to return to India for treatment of various ailments, which will be more quickly available there than here in Hong Kong.

Sentence

22.  The guideline sentence for the offence of burglary of a non-domestic premises is that of two and a half years’ imprisonment for a first offender, subject to any aggravating and mitigating circumstances.

23.  The defendant claimed, at first, through his solicitor in mitigation that he had picked up the pliers that he used to dismantle the pipes and meters from the backyard. Since this is in contradiction to the evidence of Ms Chan, I indicated that I was not inclined to believe the defendant’s assertion and invited Mr Chan to consider whether he would like to ask the defendant to give evidence on the issue. Time was given for Mr Chan to take instructions. The defendant decided not to do so, and Mr Chan formally retracted the assertion that the burglaries were committed in opportunistic circumstances.

24.  I, therefore, sentence the defendant on the basis that the only reasonable inference is that the defendant had brought along the tools for the burglaries. That being the case, the defendant was indeed not an opportunistic burglar. He had planned the burglaries and brought along tools suitable for dismantling pipes and meters, which involved some planning and organisation.

25.  Although the defendant’s conduct had caused the victim company to suffer some loss, the amounts are not so large as to amount to an aggravating factor to enhance the sentences.

26.  I will, therefore, adopt the same two and a half year starting point for both charges.

Aggravating factor

27.  The defendant committed the present offences 20 and 22 days, respectively, after his last release from prison. I find this disregard for the law an aggravating factor, for which the sentences will each be enhanced by 2 months’ imprisonment. 

28.  I find that the fact that the defendant felt embarrassed to ask for help from his family upon his release from jail, and therefore causing him to decide to commit the burglaries does not amount to a mitigating factor. It also does not lessen the culpability of the defendant in deciding to commit further criminal offences shortly after his release.

29.  There are no mitigating factors other than the defendant’s timely pleas of guilty, and for that he is granted the full one-third discount. I find that any discount that might be granted to the defendant for his assistance to the Police is subsumed in the one-third discount.

30.  The defendant’s sentence on each charge is, therefore, 21.3 months’ imprisonment after plea.

Totality

31.  The burglaries were committed on the same premises within days. The defendant admitted to deciding to go back to burgle the same premises when he needed more money. The two burglaries are not connected except for the defendant’s participation.

32.  A wholly consecutive sentence would result in a sentence of 42.6 months’ imprisonment. I find that this would be out of proportion to the overall culpability of the defendant.

33.  Taking a step back, I will order that 8.7 months of the sentence in charge 2 be served consecutively to the sentence of charge 1, the balance to be served concurrently.

34.  The final total sentence is, therefore, 30 months’ imprisonment for the two charges.