HKSAR v. MARIA MANINDER SINGH AND ANOTHER

DCCC626/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 626 OF 2012

--------------------

--------------------

**********

DCCC933/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 933 OF 2012

--------------------

--------------------

**********

DCCC966 & 1186/2012

(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 966 & 1186 OF 2012 (Consolidated)

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1. Mr. Maria Maninder Singh (D1) and Mr. Amjed Ali (D2) appear before me for sentence today.  Each of them is involved in two cases.  They are the two defendants joined in the same charge sheet in Case No. DCCC626/2012.  In addition, D1 is involved in Case No. DCCC933/2012, while D2 is involved in Case No. 966 & 1186/2012 (consolidated).  They plead guilty to all the charges they are respectively facing in these cases.

Case No. DCCC626/2012 (against D1 and D2)

2. There are 3 charges.  The 1^st Charge is a joint charge against D1 and D2 for the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210, Laws of Hong Kong.  The 2^nd Charge is against D1 only for the offence of failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Chapter 115. The 3^rd Charge is against D2 only for the offence of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Chapter 221. 

3. The facts admitted by both defendants revealed that a burglary took place on 1^st May 2012 inside Flat B on the 3^rd floor (“Flat B”) of a building situated at No. 24 Ko Shan Road, Kowloon (“the Building”).  On the same floor, there were two other flats, i.e. Flat A and Flat C.  At the time of the offence, the Building was awaiting for redevelopment.  All flats inside the Building were vacant except Flat B which was occupied by the victim Madam Cheng.

4. On 1^st May 2012, at around 3 p.m., the victim left Flat B with its windows and doors locked.  The doors of Flats A and C were also closed.  The victim had also locked the common iron-gate on the 3^rd floor before she left.  At about 6 p.m., the victim returned, only to find the common iron gate as well as the doors of Flats A and C having been slid open.  The iron gate to her own Flat B was also open, with indented marks on the iron gate and smashed glasses on the floor.  There were signs of ransacking inside Flat B.  Upon checking, the victim found a LCD television set, a laptop computer and a Rolex watch missing.  The total value of the stolen property was $70,300.

5. The CCTV camera installed at the ground floor of the Building captured that on 1^st May 2012, D1 and D2 entered the Building together at 4:41 p.m. and left together at 5:28 p.m.  They wandered nearly thereafter but entered the Building again at 5:43 p.m.  They left the Building together at 5:51 p.m. with D1 carrying a black bag and D2 holding a large rectangular object covered with towel.

6. On 22^nd May 2012, D1 and D2 were intercepted by the police for enquiries. 

7. Upon enquiry under caution, D1 admitted that he went with his friend to steal copper pipes, but his friend then broke in Flat B to steal and asked him to act as a lookout.  He was then arrested for burglary.  Under further caution, D1 stated that his friend stole the property but he was not given any share.  In a subsequent video-recorded interview, D1 stated under caution that his friend Amjed told him at around 2 p.m. on 1^st May 2012 that he (Amjed) would cut off some copper water pipes from outside the Building for him (D1) to take away. They then met downstairs of the Building.  Whilst he was walking up the Building, his friend broke into a flat on the 3^rd floor by kicking open the door, and stole a television set.  D1 also stated that he had a nickname called “Ah Dee”.

8. Upon enquiry under caution, D2 admitted that he received a call on 1^st May 2012 from Ah Dee.  Ah Dee told him that he was on the 3^rd floor of the Building and that he had found some valuables inside.  D2 then went there to remove a television set downstairs.  D2 was then arrested for burglary.  Under further caution, D2 stated that he had only removed a television set downstairs, and that Ah Dee had given him $200.  After he had given the television set to Ah Dee, Ah Dee left by taxi.  In a subsequent video-recorded interview, D2 declined to answer any question other than stating that he was a construction worker.

9. Both D1 and D2 admitted that they had entered Flat B as trespassers and stolen property inside (Charge 1).

10. At the time when D1 was enquired by the police on 22^nd May 2012, PC10259 asked D1 to produce his Hong Kong identity card, but D1 failed to do so.  Under caution, D1 stated that he lost his identity card in March 2012, but he had forgotten to make a report to the police (Charge 2).

11. On 7^th August 2012, D2 appeared in District Court in answer to the charge of burglary.  His case was adjourned to 4^th September 2012 for him to apply for legal aid.  He was granted court bail.  However, he did not appear as appointed.  A warrant of arrest was issued against him.  He was re-arrested on 10^th December 2012.  Under caution, he did not provide any explanation for his failure to appear in court (Charge 3).

Case No. DCCC933/2012 (against D1)

12. D1 is the only defendant.  There is only one charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

13. The facts admitted by D1 revealed that he attempted to enter Room B of a multi-cubicle apartment located at 4^th Floor, No. 25 Hung Fook Street, Humg Hom in the early hours of 12^th August 2012.  This Room B was occupied by the victim and her son.  At about 3:30 a.m. that day, the victim heard banging noises at the wooden door of Room B.  She asked her son to make a report to the police.  Two police officers arrived about 10 minutes later.  They saw D1 prizing the frame of the wooden door of Room B with a screwdriver in his right hand which had a white labour glove on.  When D1 noticed the police officers, he immediately dropped the screwdriver onto the ground and tried to flee, but to no avail.  Another screwdriver and a bag were found lying on the ground.  The victim confirmed that she had suffered no loss, but she found some new prizing marks on the wooden door of Room B.  D1 admitted that he attempted to enter Room B as a trespasser with intent to steal inside.

Cases No. DCCC966 & 1186/2012 (consolidated) (against D2)

14. D2 is one of the two defendants in this consolidated case.  The 1^st Charge is a joint charge against D2 and the other defendant for the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.  The 2^nd Charge is against D2 only for the offence of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Chapter 221. 

15. The facts admitted by D2 revealed that a burglary took place in the morning of 13^th August 2012 inside a pub (“the Pub”) on the ground floor of a 3-storey building situated at No. 106 Boundary Street, Kowloon City.  At the time of the offence, the building including the Pub was vacant and was under the management of a property management company.  Mr. Chan, the person-in-charge of the property management company, visited the building on 10^th August 2012 and found everything in order.  Around 8 a.m. on 13^th August 2012, Mr. Chan was alerted by his friend over the phone that the main door of the Pub had been opened, and that a foreigner was sitting outside the main door of the Pub.  Mr. Chan made a report to the police.

16. Police officers arrived at the building about 10 minutes later.  They found the main door of the Pub seriously damaged.  It had been prized open.  D2’s co-defendant was sitting outside the Pub with a 2 feet long spanner placed underneath an umbrella on the ground beside him.  The police officers entered the Pub and found D2 inside.  They asked D2 why he was there, but D2 refused to answer.  D2 was then arrested, and he remained silent under caution.

17. The CCTV camera installed opposite to the Pub captured that D2 and his co-defendant were hanging around the building at about 5:07 a.m.  They then went to the rear lane.  They returned from the rear lane at about 5:30 a.m.  Between 5:35 a.m. and 5:50 a.m., D2 and his co-defendant dismantled the wooden hoarding and the fence of the Pub.  Between 5:50 a.m. and 7:30 a.m., they lifted up the iron grille and prized open the main door of the Pub with force.  D2 then entered the Pub while his co-defendant staying outside.

18. D2 admitted that he had entered the Pub as a trespasser and attempted to steal therein (Charge 1).

19. D2 was charged with one count of burglary on 15^th August 2012.  He was granted court bail to appear on 19 September 2012 at Kowloon City Magistracy, but he failed to appear as appointed.  A warrant of arrest was issued.  D2 was re-arrested on 10^th December 2012.  Under caution, he remained silent (Charge 2).

Criminal record

20. D1 has one previous conviction in October 2011.  For the offence of possession of dangerous drugs, he was fined $1,000.

21. D2 has a clear record.

Personal and family background

22. D1 is 25 years old.  He was born in India.  He came to Hong Kong in 1995 to join his parents and two elder brothers for family reunion.  He studied up to Form 3 in Hong Kong.  He then worked as an office assistant and a part-time transportation worker.  He is single, but he has a girlfriend and a son aged 10 months.  His girlfriend and son are now living in the Philippines.  D1 is now staying with his 1^st elder brother as well as the wife and son of his 1^st elder brother.  His parents and his 2^nd elder brother are living apart.

23. D2 is 28 years old.  He was born in Pakistan.  He came to Hong Kong in 1995 to join his father.  He studied up to Form 2 in Hong Kong.  He had been a recycling depot worker, construction site worker, a security guard, and according to his counsel, a driver as well.  D2’s parents are now in Pakistan where his mother is receiving treatment for cancer and his father is looking after her.  He has 5 younger siblings.  He is now cohabiting with his girlfriend in the home of one of his sisters.

Pre-sentencing reports

24. I have considered the background report and drug addiction treatment centre report in respect of each defendant.  It appears that each defendant had a drug problem prior to their remand.

25. D1 started taking cannabis in 2004.  In 2007, ice was added into his drug list.  Prior to his remand, he took drugs 3 times per week.  His last dosage of cannabis and ice was in August 2012.  Since D1 has already been remanded in custody for over 5 months, he is no longer a drug addict and is therefore considered not suitable for admission into a drug addiction treatment centre.

26. D2 started taking ice in early 2012.  Prior to his remand, he took ice almost every day. The last dosage was taken on 11 December 2012.  He is a drug addict, and is suitable for admission into a drug addiction treatment centre.

Mitigation

27. Miss Crebbin, Counsel for D1, submitted that D1 had been a conscientious citizen in the community in various ways in the past, and that he committed these offences when he was unemployed and abusing drugs due to influences of unsavory people.

28. As far as the May burglary offence was concerned, Miss Crebbin informed me that D1 initially only intended to act as a lookout for D2 so that D2 would cut copper piping on the outside of the building which was not occupied, but when they discovered that there was still a flat being occupied, they changed their plan.  Miss Crebbin realized that D1’s version of event differed from that of D2, but submitted that there was little difference in sentencing as far as the roles played by each defendant were concerned.  She stressed that D1 would not have committed the offence if he had not been under the influence of drugs because drugs made him unable to think seriously of the consequences of his act. 

29. As far as the second attempted burglary offence was concerned, Miss Crebbin informed me that D1 had taken cannabis and several cans of beer in the rooftop of the building prior to the offence.  When he left, he intended to patronize a prostitute in the same building, but when he went down from the rooftop to the 4/F., he noticed the iron gate of a unit was left ajar.  He then walked in and attempted to prize open the wooden door of a room inside.  Miss Crebbin stressed that D1 was clearly under the influence of drugs and alcohol, because he would otherwise have been aware there might be people inside the room, and that his act would have been captured by the CCTV the existence of which was known to him since he had been to that building before.  Miss Crebbin also submitted that the offence was not premeditated.  The screwdriver which the defendant had used was a tool he required frequently to repair his motor bike which always broke down, but that screwdriver had been put inside a bag where D1 put his drugs, and on the day in question, his original intention was only going up to the rooftop of the building to take cannabis. 

30. Miss Crebbin accepted that in both cases, if imprisonment was the appropriate sentencing option, the normal tariff for domestic burglary would apply.  However, she pleaded for a lower starting point on the ground that D1 did not fully appreciate what he was doing in both instances because he was under the influence of drugs, or drugs and alcohol. 

31. Miss Crebbin also submitted that the CCTV image would not be sufficient to lead to a conviction in respect of the May burglary because the image was not clear enough. 

32. Miss Crebbin stressed that D1 had pleaded guilty and was prepared to change since he had become a father now, and wanted very much to stay with his son during his formative years and to take care of his common law wife.  D1’s family members were also supportive of him and will render him all the necessary help.  Miss Crebbin produced letters written by D1 and Christian New Life Association as well as the photograph of his son to plead for leniency.

33. Mr. Boyton, Counsel for D2, informed me that D2 came from a working class family.  His parents have returned to Pakistan because his mother is receiving treatment there for cancer and his father is looking after her.  A medical certificate is produced to show that both parents are now suffering from depression since they are aware of D2’s present incarceration.  A letter from D2’s father for mitigation is also produced. 

34. Mr. Boyton stressed that but for D2’s confession under caution to the May burglary offence, the prosecution would have difficulty to bring home a conviction because the CCTV image was not clear enough to sustain a beyond reasonable doubt identification of the offender.  He pointed out that D2’s guilty plea had saved a lot of court and police time.  He said that D2 was a man of previous good character, and he committed all these offences because he was under the influence of drugs.  Mr. Boyton suggested that this Court might consider sentencing D2 to drug addiction treatment center in respect of one case, and imposing a term of imprisonment for the other one.

Reasons for sentence

35. Burglary is a very serious offence.  It has been held by the Court of Appeal that save for the most exceptional cases, a custodial sentence is the appropriate sentence for an adult burglar even though he pleads guilty and has a clear record: HKSAR v Wan Ka Kit [2006] 3 HKLRD 9; HKSAR v Cheung Wing Sum (CACC321/2006).

36. As far as the quantum of the sentence is concerned, the sentencing authorities are clear. For a domestic premises burglary, the usual starting point is 3 years’ imprisonment: Attorney General v Lui Kam Chi [1993] 1 HKC 215.  For a non-domestic premises burglary, the usual starting point is 2½ years’ imprisonment: The Queen v Wong Man [1993] 1 HKC 80.  For an opportunistic burglary into vacated premises inside a building that has been re-possessed by developer awaiting redevelopment and the property inside the vacated premises are of low value, the proper starting point is 18 months’ imprisonment: HKSAR v Chau Man Ying (CACC439/2011).  On the other hand, if the offender uses a crowbar to break open the lock of the vacated premises and carries with him large quantity of burglary equipment, a starting point of 2 years’ imprisonment will be justified because the offence is committed with premeditation, and the offender has to be deterred from carrying burglary equipment with the intention of forcing his entry into the premises of other persons: HKSAR v Shea Pat Chi (CACC196/2012).

37. The starting point can be adjusted upwards if there are aggravating circumstances: HKSAR v Cheng Wai Kai (CACC338/2007).  Aggravating circumstances include using heavy instrument or equipment in the burglary, or two or more persons committing the offence.

38. With these general principles in mind, I now deal with the sentences to be imposed on each defendant.

D1

39. D1 is convicted of Charges 1 and 2 in Case No. DCCC626/2012, and of the only charge in DCCC933/2012.

40. I have considered the facts of each case and the mitigation advanced by Miss Crebbin on behalf of D1.  There is simply no ground that justifies the imposition of a non-custodial sentence. I had acceded to counsel’s request to call for a drug addiction treatment centre report.  It was submitted that D1 committed these offences because of his drug addiction.  When calling for the report, I had made it clear that a drug addiction treatment centre order is an unlikely sentencing option in light of the gravity of the offences.  Nothing that has been said in mitigation has changed my view.  The fact that D1 was under the influence of drug, or both drug and alcohol, was not a special feature of the case or a mitigating factor that diminished the gravity of the offences since all such influences were all self-induced.  Furthermore, D1 is not suitable for admission into drug addiction treatment centre because he is no longer a drug addict.  For these reasons, I find that imprisonment is the only appropriate sentencing option.

41. As far as the quantum is concerned, I first deal with Case No. DCCC626/2012.  The facts relating to the 1^st Charge reveal that the burglary took place inside a building due for redevelopment.  All units inside except the victimized premises were unoccupied. Counsel for both defendants accepted that the usual tariff for domestic burglary applied because the defendants were aware that the victimized premises were occupied for domestic use at that time.  For these reasons, I adopt 3 years’ imprisonment as the starting point.  In my view, the fact that D1 was acting under influence of drugs, which was self-induced, was not a ground to lower the starting point. 

42. As far as aggravating factors are concerned, there is no evidence to show that D1 or D2 had used any equipment to burgle into the premises.  On the other hand, the offence was committed by more than one person, i.e. D1 and D2 together, and this constitutes an aggravating factor according to Cheng Wai Kai.  I therefore adjust the starting point upwards by 2 months.  In other words, I find the appropriate starting point for the sentence in respect of the 1^st Charge to be 38 months’ imprisonment.

43. As far as mitigating factors are concerned, D1 pleads guilty.  He is entitled to the usual one third discount of the sentence. 

44. Miss Crebbin for D1, and indeed Mr. Boyton for D2, submitted that but for the confession of each defendant, the prosecution would not have proved the charge against them.  Mr. Vidler for the prosecution disputed that contention.  To resolve the issue, the CCTV tape that captured the images of D1 and D2 was played in Court.  Having viewed the images, I am of the view that the images were not that clear, and each defendant had at least a reasonable fighting chance had they chosen to plead not guilty.  Under these circumstances, and having considered the authorities submitted by Mr. Boyton, i.e. R v Ho Ming Sun (CACC461/1981), HKSAR v Ng Wing Chung (CACC176/2005) and HKSAR v Tsang Kai On [2011] 2 HKLRD 340, I am prepared to increase the guilty plea discount to around 40% of the sentence. 

45. I have considered all other mitigating factors urged upon me.  I am sympathetic in particular to the predicament of D1’s girlfriend (or common law wife) and infant son.  However, nothing that has been said can in law amount to effective mitigating factor.  For this reason, I find that the appropriate sentence for D1 in respect of the 1^st Charge to be imprisonment for 22 months and 15 days.

46. As far as the 2^nd Charge is concerned, D1 failed to produce his proof of identity to police officer when he was asked to do so.  Fine is the usual penalty for this offence, and there was no aggravating factor that takes the present case out of the norm.  D1 is fined $150 and he is given 60 days to pay.  In default, he has to serve one day imprisonment, to run consecutively to the sentence imposed in respect of Charge 1.

47. In respect of Case No. DCCC933/2012, it was clearly an attempted burglary into premises used for domestic purposes.  D1 attempted to prize open the wooden door of the victimized premises with a screwdriver.  It must be apparent to him that the premises were still occupied.  I find that 3 years’ imprisonment is the appropriate starting point.

48. As far as aggravating factors are concerned, D1 did use a screwdriver in an attempt to break into the premises.  However, the screwdriver was only a small tool or equipment, and the sentence should not be increased on this basis.  In this case, D1 acted alone.  I therefore find that there is no aggravating factor to increase the sentence.

49. As far as mitigation is concerned, again, the only valuable mitigating factor is D1’s guilty plea.  He is therefore entitled to one-third discount of the sentence. The proper sentence for this case is 2 years’ imprisonment.

50. I now consider whether the sentences for these two cases should run concurrently or consecutively, whether wholly or in part.  I have borne in mind the principle of totality which means that the overall sentence should not be too long to jeopardize D1’s rehabilitation but it should be able to properly reflect the overall criminalities of the offences.  I have also taken into account the mitigation that has been urged upon me on all occasions.  I appreciate that D1 had been a conscientious citizen of the community in the past.  I am of the view that an overall sentence of about 33 months’ imprisonment is appropriate. To give effect to this overall sentence, I sentence D1 as follows:

DCCC626/2012

Charge 1: imprisonment for 22 months and 15 days;

Charge 2: Fine $150, to be paid within 60 days; in default,

imprisonment for one day, to run consecutively to Charge 1.

DCCC933/2012

24 months’ imprisonment, 10 months and 15 days to run

consecutively to DCCC926/2012.

51. The total sentence for D1 is therefore imprisonment for 32 months and 30 days.

D2

52. D2 is convicted of Charges 1 and 3 in Case No. DCCC626/2012, and of Charges 1 and 2 in Cases No. DCCC966 & 1186/2012 (consolidated).

53. Mr. Boyton had pointed out that D2 committed the offences because of his drug addiction.  He therefore sought to argue that the Court might consider sentencing D2 to prison for one case and sending him to drug addiction treatment centre for the other. However, I rule against this option because, firstly, the two burglary offences, either on each own or accumulatively, were just too serious that a drug addiction treatment centre order is not appropriate; secondly, it will be wrong in sentencing principle to sentence a defendant to prison on the one hand, which is a punitive and deterrent sentence, and subject him to a drug addiction treatment centre order, which is rehabilitative in nature, on the other.  It will be wrong for a sentencing court to impose sentences for different sentencing purposes at the same time.  I find that the only suitable sentencing option for D2 is imprisonment.

54. In Case No. DCCC626/2012, I noted the difference in the versions of event given by D1 and D2 under caution.  I agree with both counsels that there should be no difference in sentencing on the roles played by D1 and D2 in the offence which was clearly a joint enterprise.  For the same reasons as already been explained in the case of D1, I adopt 38 months’ imprisonment as the starting point in respect of the 1^st Charge.

55. As far as the mitigating factors are concerned, as I have already said, I will give D2 40% discount of the sentence to reflect his guilty plea and the fact that just on the CCTV image alone the prosecution might not be able to prove the charge beyond reasonable doubt against him.

56. I have also considered all the mitigation urged upon me by Mr. Boyton, in particular the serious illness D2’s mother and the mental conditions of his parents.  However, such matters can hardly amount to effective mitigating factor.  For these reasons, I find that the appropriate sentence for D2 in respect of the 1^st Charge is imprisonment for 22 months and 15 days.

57. As far as the 3^rd Charge is concerned, D2 failed to answer his court bail and remained at large for 3 months and 6 days before he was re-arrested.  He offered no explanation for his abscondence.  In HKSAR v Wong Chi Hung (CACC300/2010), the appellant had failed to answer his court bail and absconded for 28 days before he was re-arrested.  The starting point of 3 months’ imprisonment adopted by the sentencing judge was approved by the Court of Appeal.

58. In the present case, I adopt 3 months’ imprisonment as the starting point.  In this instance, D2 is only entitled to a one-third discount of the sentence for his guilty plea.  There is no other mitigating factor.  He is sentenced to 2 months’ imprisonment for Charge 3.

59. As far as the 1^st Charge in Cases No. DCCC966 & 1186/2012 (consolidated) is concerned, the Pub was obviously business premises.  Mr. Boyton submitted that imprisonment for 20 months after plea, which was the usual tariff for non-domestic burglary applied, was the starting point.  In my view, since the Pub was inside a building pending redevelopment, the lower tariff that I have mentioned earlier is more applicable.  I adopt 18 months’ imprisonment as the starting point.

60. At the time of the offence, the police found a spanner outside the premises near the co-accused of D2.  In my view, even if this spanner had been used, it was just a small tool that did not warrant an increase in sentence.  However, D2 committed this offence with another person.  The starting point is therefore adjusted upwards to 20 months’ imprisonment.

61. The only mitigating factor is his guilty plea.  He is entitled to one-third discount. He is therefore sentenced to imprisonment for 13 months and 10 days.

62. As far as the 2^nd Charge is concerned, D2 had failed to answer his court bail and remained at large for 2 months and 21 days.  He provided no explanation for his abscondence.  Likewise, I adopt 3 months’ imprisonment as the starting point and reduce it to 2 months’ imprisonment on account of his guilty plea which is the only mitigating factor.

63. In respect of each case, I am of the view that the sentence of bail offence should in principle run wholly consecutively to the burglary offences, but I cannot lose sight of the question of totality.  I am of the view that for all these 4 charges, an overall sentence of about 31 months’ imprisonment is appropriate. To give effect to this overall sentence, I sentence D2 as follows:

DCCC626/2012

1^st Charge: imprisonment for 22 months and 15 days.

3^rd Charge: imprisonment for 2 months, to run consecutively to Charge 1.

DCCC966 & 1186/2012 (consolidated)

1^st Charge: imprisonment for 13 months and 10 days.

2^nd Charge: imprisonment for 2 months, to run concurrently with Charge 1, and 6 months and 15 days of the concurrent sentences are to run consecutively to the sentences for DCCC626/2012.

64. The total sentence for D2 is therefore imprisonment for 30 months and 30 days.