HKSAR v. BAATHJARNAIL SINGH AND ANOTHER

DCCC 811/2018

[2019] HKDC 315

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 811 OF 2018

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Reasons for Sentence

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1.  Both defendants pleaded guilty to a joint charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  The burgled restaurant is Deluxe Daikiya Japanese restaurant located at Shop No 102, 1st Floor, Albion Plaza, Granville Road, Tsim Sha Tsui, Kowloon.  It closed at 12 midnight.  The restaurant’s main entrance was guarded by an electric folding gate and it has 2 other back doors, which would lead to the rear lane and staircase connecting to the building’s other floors.

2.  On 1 February 2018 at 00.45 am, restaurant staff forgot to remove the key on the gate after shutting it down.  

3.  Later in the morning at 7.08 am, CCTV captured a man removing the key from the gate. 

4.  At about 8.08 am, CCTV captured 2nd defendant covering his head with his scarf, searching through the restaurant, and attempted to steal a safe near the cashier, but he then left and returned 20 minutes later with the 1st defendant (wearing a cap and carrying a luggage).  Both then went in and moved the safe together, but the security guard just attended and they discarded the safe and fled.

5.  The restaurant later accounted the following loss: 

(a) 2 Octopus cards;

(b) bundle of 3 credit cards (left behind by customers);

(c) cash of about $139; and

(d) 1 smartphone.

6.  Police also arrived at the scene and found the 1st defendant hiding inside cubicle in the male toilet on the 10th floor and found from him one stolen Octopus card with the restaurant’s sticker on it, and the police also found from the toilet’s water tank the stolen bundle of 3 credit cards.

7.  Under caution, the 1st defendant said he was told by a friend to come to move things. 

8.  Police later also found from the scene some discarded clothing at the staircase of the 5th floor:  a black cap and a sweater (worn by the burglar as shown on the CCTV), containing DNA matching the 1st defendant.  The random match probability is 1 in 401 quadrillion.  And inside the washroom on 12th floor: a travel bag containing a windbreaker, trousers, scarf, pair of gloves, a torch and a facemask, which were seen being worn by the burglar on CCTV.  The windbreaker, the torch and the facemask containing DNA matching the 2nd defendant.  The random match probability for the windbreaker is 1 in 135 million and that for the torch and facemask are 1 in 55.1 sextillion. 

9.  CCTV also captured both defendants walking up and down the staircase at the material time (they uncovered their face and changed clothing).

10.  On 2 February 2018, police arrested the 2nd defendant and he admitted that he took the key and committed the burglary out of greed.

11.  Both defendants now admit jointly entered the restaurant as trespassers and stole therein 2 Octopus cards, 3 credit cards, cash of $139 and 1 smartphone.

12.  1st defendant aged 45 and he had 8 previous convictions, including 4 possession of dangerous drugs, where he was last sentenced to DATC in March 2018. 

13.  2nd defendant aged 39. He had 22 previous convictions, 11 of which were possession of dangerous drugs, where he was last sentenced to 4 months’ imprisonment in May 2017.

14.  Mr Whitehouse for the 1st defendant submits that the 1st defendant had no similar record and he had been a drug addict for some time. 

15.  Mr Whitehouse further submits that it was an opportunistic crime, everything stolen was recovered, and they were of relatively small value items.  The crime was committed in daytime and it was not premeditated.  1st defendant had shown full co-operation to the police by telling the whereabouts of the 2nd defendant and even led the police there to arrest the 2nd defendant.  1st defendant hopes for a lenient sentence.

16.  Miss Ma for the 2nd defendant adopts the submissions for the 1st defendant and further stated that there was no tool nor equipment employed and there was no aggravating features concerning the crime committed.  2nd defendant had 5 children aged 11 to 17 to support and he had no similar record and he also hopes for a lenient sentence.

17.  Burglary is a serious offence.  The Court of Appeal in quite some cases had already stated that, for burglary involving non-domestic premises, 2½ years’ imprisonment shall be imposed. 

18.  No doubt the 2nd defendant seized the opportunity when the staff left the key at the gate, but it later developed to be with the 1st defendant and even trying to move out the safe.  It could no longer be said to be a simple matter.  They discarded the safe only when the security guard had attended. 

19.  In the circumstances, I do not see why the usual starting point should be departed.  The facts were much more serious as comparing to the case submitted, HKSAR v Khan Asif [2010] 1 HKLRD 404. 

20.  However, for the 1st defendant, it shall be highlighted that he did help police to find out 2nd defendant at the very early stage and it should be reflected in his sentence.

21.  So, for the 1st defendant, after guilty plea and taking into account all the above mitigating factors, it shall be reduced to 18 months’ imprisonment.

22.  As for the 2nd defendant, it shall be reduced to 20 months’ imprisonment.

23.  So, for the present charge,

1st defendant: 18 months’ imprisonment;

2nd defendant: 20 months’ imprisonment.