DCCC966/2012 HKSAR v. MARIA MANINDER SINGH AND ANOTHER - LawHero
DCCC966/2012
HKSAR v. MARIA MANINDER SINGH AND ANOTHER
區域法院（刑事）District Judge W.K. Kwok Before: District Judge W.K. Kwok Before: District Judge W.K. Kwok31/1/2013
合併案件：DCCC933/2012DCCC626/2012DCCC966/2012
DCCC966/2012
A DCCC626/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 626 OF 2012
--------------------
C C
HKSAR
D D
v.
E MARIA MANINDER SINGH (D1) E
AMJED ALI (D2)
F F
--------------------
G Before: District Judge W.K. Kwok G
Date: 1 February 2013 at 1:10 pm
Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR
H Miss CREBBIN Diane Mervyne instructed by Messrs George H
Chan & Co. assigned by the Director of Legal Aid, for
I
D1. I
Mr. David BOYTON instructed by Messrs Jal. N. Karbhari
& Co. for D2.
J J
Offence: (1) Burglary (入屋犯法罪)
(2) Failure to produce proof of identity on demand
K K
(未能在規定下出示身分證明文件)
(3) Failing to surrender to custody without reasonable
L cause (無合理因由而沒有按照法庭的指定歸押) L
M M
**********
N DCCC933/2012 N
O IN THE DISTRICT COURT OF THE O
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 933 OF 2012
P P
--------------------
Q HKSAR Q
v.
R R
MARIA MANINDER SINGH
S S
--------------------
T Before: District Judge W.K. Kwok T
Date: 1 February 2013 at 1:10 pm
U U
1
V V
A Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR A
Miss CREBBIN Diane Mervyne instructed by Messrs George
Chan & Co. for Defendant.
B B
Offence: Attempted Burglary (企圖入屋犯法罪)
C C
**********
D D
DCCC966 & 1186/2012
(Consolidated)
E E
IN THE DISTRICT COURT OF THE
F HONG KONG SPECIAL ADMINISTRATIVE REGION F
CRIMINAL CASE NO. 966 & 1186 OF 2012 (Consolidated)
--------------------
G G
HKSAR
H H
v.
I AMJED ALI (D2) I
--------------------
J J
Before: District Judge W.K. Kwok
Date: 1 February 2013 at 1:10 pm
K K
Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR
Mr. David BOYTON instructed by Messrs Jal. N. Karbhari
L & Co. for D2. L
Offence: (1) Burglary (入屋犯法罪)
M (2) Failing to surrender to custody without reasonable M
cause (無合理因由而沒有按照法庭的指定歸押)
N N
---------------------
O O
Reasons for Sentence
P P
---------------------
Q Q
1. Mr. Maria Maninder Singh (D1) and Mr. Amjed Ali (D2) appear
before me for sentence today. Each of them is involved in two
R R
cases. They are the two defendants joined in the same charge
sheet in Case No. DCCC626/2012. In addition, D1 is involved in
S S
Case No. DCCC933/2012, while D2 is involved in Case No. 966 &
1186/2012 (consolidated). They plead guilty to all the charges
T T
they are respectively facing in these cases.
U U
2
V V
A Case No. DCCC626/2012 (against D1 and D2) A
2. There are 3 charges. The 1st Charge is a joint charge
B against D1 and D2 for the offence of burglary, contrary to B
section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210,
C Laws of Hong Kong. The 2 nd Charge is against D1 only for the C
offence of failure to produce proof of identity on demand,
D contrary to section 17C(3) of the Immigration Ordinance, Chapter D
115. The 3rd Charge is against D2 only for the offence of
E
failing to surrender to custody without reasonable cause, E
contrary to section 9L(1) and (3) of the Criminal Procedure
Ordinance, Chapter 221.
F F
3. The facts admitted by both defendants revealed that a
G G
burglary took place on 1st May 2012 inside Flat B on the 3rd floor
(“Flat B”) of a building situated at No. 24 Ko Shan Road,
H H
Kowloon (“the Building”). On the same floor, there were two
other flats, i.e. Flat A and Flat C. At the time of the
I I
offence, the Building was awaiting for redevelopment. All flats
inside the Building were vacant except Flat B which was occupied
J J
by the victim Madam Cheng.
K K
4. On 1st 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
L L
were also closed. The victim had also locked the common iron-
gate on the 3rd floor before she left. At about 6 p.m., the
M M
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
N N
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
O O
ransacking inside Flat B. Upon checking, the victim found a LCD
television set, a laptop computer and a Rolex watch missing.
P P
The total value of the stolen property was $70,300.
Q 5. The CCTV camera installed at the ground floor of the Q
Building captured that on 1 st May 2012, D1 and D2 entered the
R Building together at 4:41 p.m. and left together at 5:28 p.m. R
They wandered nearly thereafter but entered the Building again
S at 5:43 p.m. They left the Building together at 5:51 p.m. with S
D1 carrying a black bag and D2 holding a large rectangular
T object covered with towel. T
U U
3
V V
A 6. On 22nd May 2012, D1 and D2 were intercepted by the police A
for enquiries.
B B
7. Upon enquiry under caution, D1 admitted that he went with
C his friend to steal copper pipes, but his friend then broke in C
Flat B to steal and asked him to act as a lookout. He was then
D arrested for burglary. Under further caution, D1 stated that D
his friend stole the property but he was not given any share.
E
In a subsequent video-recorded interview, D1 stated under E
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
F F
from outside the Building for him (D1) to take away. They then
met downstairs of the Building. Whilst he was walking up the
G G
Building, his friend broke into a flat on the 3 rd floor by
kicking open the door, and stole a television set. D1 also
H H
stated that he had a nickname called “Ah Dee”.
I I
8. Upon enquiry under caution, D2 admitted that he received a
call on 1st May 2012 from Ah Dee. Ah Dee told him that he was on
J J
the 3rd floor of the Building and that he had found some
valuables inside. D2 then went there to remove a television set
K K
downstairs. D2 was then arrested for burglary. Under further
caution, D2 stated that he had only removed a television set
L L
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
M M
subsequent video-recorded interview, D2 declined to answer any
question other than stating that he was a construction worker.
N N
9. Both D1 and D2 admitted that they had entered Flat B as
O O
trespassers and stolen property inside (Charge 1).
P P
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,
Q but D1 failed to do so. Under caution, D1 stated that he lost Q
his identity card in March 2012, but he had forgotten to make a
R report to the police (Charge 2). R
S 11. On 7th August 2012, D2 appeared in District Court in answer S
to the charge of burglary. His case was adjourned to 4 th
T September 2012 for him to apply for legal aid. He was granted T
court bail. However, he did not appear as appointed. A warrant
U of arrest was issued against him. He was re-arrested on 10th U
4
V V
A December 2012. Under caution, he did not provide any A
explanation for his failure to appear in court (Charge 3).
B B
Case No. DCCC933/2012 (against D1)
C 12. D1 is the only defendant. There is only one charge of C
attempted burglary, contrary to section 11(1)(a) and (4) of the
D Theft Ordinance, Chapter 210 and section 159G of the Crimes D
Ordinance, Chapter 200.
E E
13. The facts admitted by D1 revealed that he attempted to
enter Room B of a multi-cubicle apartment located at 4 th Floor,
F F
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
G G
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
H H
a report to the police. Two police officers arrived about 10
minutes later. They saw D1 prizing the frame of the wooden door
I I
of Room B with a screwdriver in his right hand which had a white
labour glove on. When D1 noticed the police officers, he
J J
immediately dropped the screwdriver onto the ground and tried to
flee, but to no avail. Another screwdriver and a bag were found
K K
lying on the ground. The victim confirmed that she had suffered
no loss, but she found some new prizing marks on the wooden door
L L
of Room B. D1 admitted that he attempted to enter Room B as a
trespasser with intent to steal inside.
M M
Cases No. DCCC966 & 1186/2012 (consolidated) (against D2)
N N
14. D2 is one of the two defendants in this consolidated case.
The 1st Charge is a joint charge against D2 and the other
O O
defendant for the offence of burglary, contrary to section
11(1)(b) and (4) of the Theft Ordinance. The 2nd Charge is
P P
against D2 only for the offence of failing to surrender to
custody without reasonable cause, contrary to section 9L(1) and
Q (3) of the Criminal Procedure Ordinance, Chapter 221. Q
R 15. The facts admitted by D2 revealed that a burglary took R
place in the morning of 13 th August 2012 inside a pub (“the Pub”)
S on the ground floor of a 3-storey building situated at No. 106 S
Boundary Street, Kowloon City. At the time of the offence, the
T building including the Pub was vacant and was under the T
management of a property management company. Mr. Chan, the
U person-in-charge of the property management company, visited the U
5
V V
A building on 10th August 2012 and found everything in order. A
Around 8 a.m. on 13th August 2012, Mr. Chan was alerted by his
B friend over the phone that the main door of the Pub had been B
opened, and that a foreigner was sitting outside the main door
C of the Pub. Mr. Chan made a report to the police. C
D 16. Police officers arrived at the building about 10 minutes D
later. They found the main door of the Pub seriously damaged.
E
It had been prized open. D2’s co-defendant was sitting outside E
the Pub with a 2 feet long spanner placed underneath an umbrella
on the ground beside him. The police officers entered the Pub
F F
and found D2 inside. They asked D2 why he was there, but D2
refused to answer. D2 was then arrested, and he remained silent
G G
under caution.
H H
17. The CCTV camera installed opposite to the Pub captured that
D2 and his co-defendant were hanging around the building at
I I
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
J J
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
K K
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
L L
co-defendant staying outside.
M M
18. D2 admitted that he had entered the Pub as a trespasser and
attempted to steal therein (Charge 1).
N N
19. D2 was charged with one count of burglary on 15 th August
O O
2012. He was granted court bail to appear on 19 September 2012
at Kowloon City Magistracy, but he failed to appear as
P P
appointed. A warrant of arrest was issued. D2 was re-arrested
on 10th December 2012. Under caution, he remained silent (Charge
Q 2). Q
R Criminal record R
20. D1 has one previous conviction in October 2011. For the
S offence of possession of dangerous drugs, he was fined $1,000. S
T 21. D2 has a clear record. T
U U
6
V V
A Personal and family background A
22. D1 is 25 years old. He was born in India. He came to Hong
B Kong in 1995 to join his parents and two elder brothers for B
family reunion. He studied up to Form 3 in Hong Kong. He then
C worked as an office assistant and a part-time transportation C
worker. He is single, but he has a girlfriend and a son aged 10
D months. His girlfriend and son are now living in the D
Philippines. D1 is now staying with his 1 st elder brother as
E
well as the wife and son of his 1 st elder brother. His parents E
and his 2nd elder brother are living apart.
F F
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
G G
in Hong Kong. He had been a recycling depot worker,
construction site worker, a security guard, and according to his
H H
counsel, a driver as well. D2’s parents are now in Pakistan
where his mother is receiving treatment for cancer and his
I I
father is looking after her. He has 5 younger siblings. He is
now cohabiting with his girlfriend in the home of one of his
J J
sisters.
K K
Pre-sentencing reports
24. I have considered the background report and drug addiction
L L
treatment centre report in respect of each defendant. It
appears that each defendant had a drug problem prior to their
M M
remand.
N N
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
O O
per week. His last dosage of cannabis and ice was in August
2012. Since D1 has already been remanded in custody for over 5
P P
months, he is no longer a drug addict and is therefore
considered not suitable for admission into a drug addiction
Q treatment centre. Q
R 26. D2 started taking ice in early 2012. Prior to his remand, R
he took ice almost every day. The last dosage was taken on 11
S December 2012. He is a drug addict, and is suitable for S
admission into a drug addiction treatment centre.
T T
Mitigation
U U
7
V V
A 27. Miss Crebbin, Counsel for D1, submitted that D1 had been a A
conscientious citizen in the community in various ways in the
B past, and that he committed these offences when he was B
unemployed and abusing drugs due to influences of unsavory
C people. C
D 28. As far as the May burglary offence was concerned, Miss D
Crebbin informed me that D1 initially only intended to act as a
E
lookout for D2 so that D2 would cut copper piping on the outside E
of the building which was not occupied, but when they discovered
that there was still a flat being occupied, they changed their
F F
plan. Miss Crebbin realized that D1’s version of event differed
from that of D2, but submitted that there was little difference
G G
in sentencing as far as the roles played by each defendant were
concerned. She stressed that D1 would not have committed the
H H
offence if he had not been under the influence of drugs because
drugs made him unable to think seriously of the consequences of
I I
his act.
J J
29. As far as the second attempted burglary offence was
concerned, Miss Crebbin informed me that D1 had taken cannabis
K K
and several cans of beer in the rooftop of the building prior to
the offence. When he left, he intended to patronize a
L L
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
M M
ajar. He then walked in and attempted to prize open the wooden
door of a room inside. Miss Crebbin stressed that D1 was
N N
clearly under the influence of drugs and alcohol, because he
would otherwise have been aware there might be people inside the
O O
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
P P
building before. Miss Crebbin also submitted that the offence
was not premeditated. The screwdriver which the defendant had
Q used was a tool he required frequently to repair his motor bike Q
which always broke down, but that screwdriver had been put
R inside a bag where D1 put his drugs, and on the day in question, R
his original intention was only going up to the rooftop of the
S building to take cannabis. S
T 30. Miss Crebbin accepted that in both cases, if imprisonment T
was the appropriate sentencing option, the normal tariff for
U domestic burglary would apply. However, she pleaded for a lower U
8
V V
A starting point on the ground that D1 did not fully appreciate A
what he was doing in both instances because he was under the
B influence of drugs, or drugs and alcohol. B
C 31. Miss Crebbin also submitted that the CCTV image would not C
be sufficient to lead to a conviction in respect of the May
D burglary because the image was not clear enough. D
E
32. Miss Crebbin stressed that D1 had pleaded guilty and was E
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
F F
take care of his common law wife. D1’s family members were also
supportive of him and will render him all the necessary help.
G G
Miss Crebbin produced letters written by D1 and Christian New
Life Association as well as the photograph of his son to plead
H H
for leniency.
I I
33. Mr. Boyton, Counsel for D2, informed me that D2 came from a
working class family. His parents have returned to Pakistan
J J
because his mother is receiving treatment there for cancer and
his father is looking after her. A medical certificate is
K K
produced to show that both parents are now suffering from
depression since they are aware of D2’s present incarceration.
L L
A letter from D2’s father for mitigation is also produced.
M M
34. Mr. Boyton stressed that but for D2’s confession under
caution to the May burglary offence, the prosecution would have
N N
difficulty to bring home a conviction because the CCTV image was
not clear enough to sustain a beyond reasonable doubt
O O
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
P P
was a man of previous good character, and he committed all these
offences because he was under the influence of drugs. Mr.
Q Boyton suggested that this Court might consider sentencing D2 to Q
drug addiction treatment center in respect of one case, and
R imposing a term of imprisonment for the other one. R
S Reasons for sentence S
35. Burglary is a very serious offence. It has been held by
T the Court of Appeal that save for the most exceptional cases, a T
custodial sentence is the appropriate sentence for an adult
U burglar even though he pleads guilty and has a clear record: U
9
V V
A HKSAR v Wan Ka Kit [2006] 3 HKLRD 9; HKSAR v Cheung Wing Sum A
(CACC321/2006).
B B
36. As far as the quantum of the sentence is concerned, the
C sentencing authorities are clear. For a domestic premises C
burglary, the usual starting point is 3 years’ imprisonment:
D Attorney General v Lui Kam Chi [1993] 1 HKC 215. For a non- D
domestic premises burglary, the usual starting point is 2½
E
years’ imprisonment: The Queen v Wong Man [1993] 1 HKC 80. For E
an opportunistic burglary into vacated premises inside a
building that has been re-possessed by developer awaiting
F F
redevelopment and the property inside the vacated premises are
of low value, the proper starting point is 18 months’
G G
imprisonment: HKSAR v Chau Man Ying (CACC439/2011). On the
other hand, if the offender uses a crowbar to break open the
H H
lock of the vacated premises and carries with him large quantity
of burglary equipment, a starting point of 2 years’ imprisonment
I I
will be justified because the offence is committed with
premeditation, and the offender has to be deterred from carrying
J J
burglary equipment with the intention of forcing his entry into
the premises of other persons: HKSAR v Shea Pat Chi
K K
(CACC196/2012).
L L
37. The starting point can be adjusted upwards if there are
aggravating circumstances: HKSAR v Cheng Wai Kai (CACC338/2007).
M M
Aggravating circumstances include using heavy instrument or
equipment in the burglary, or two or more persons committing the
N N
offence.
O O
38. With these general principles in mind, I now deal with the
sentences to be imposed on each defendant.
P P
D1
Q 39. D1 is convicted of Charges 1 and 2 in Case No. Q
DCCC626/2012, and of the only charge in DCCC933/2012.
R R
40. I have considered the facts of each case and the mitigation
S advanced by Miss Crebbin on behalf of D1. There is simply no S
ground that justifies the imposition of a non-custodial
T sentence. I had acceded to counsel’s request to call for a drug T
addiction treatment centre report. It was submitted that D1
U committed these offences because of his drug addiction. When U
10
V V
A calling for the report, I had made it clear that a drug A
addiction treatment centre order is an unlikely sentencing
B option in light of the gravity of the offences. Nothing that B
has been said in mitigation has changed my view. The fact that
C D1 was under the influence of drug, or both drug and alcohol, C
was not a special feature of the case or a mitigating factor
D that diminished the gravity of the offences since all such D
influences were all self-induced. Furthermore, D1 is not
E
suitable for admission into drug addiction treatment centre E
because he is no longer a drug addict. For these reasons, I
find that imprisonment is the only appropriate sentencing
F F
option.
G G
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
H H
that the burglary took place inside a building due for
redevelopment. All units inside except the victimized premises
I I
were unoccupied. Counsel for both defendants accepted that the
usual tariff for domestic burglary applied because the
J J
defendants were aware that the victimized premises were occupied
for domestic use at that time. For these reasons, I adopt 3
K K
years’ imprisonment as the starting point. In my view, the fact
that D1 was acting under influence of drugs, which was self-
L L
induced, was not a ground to lower the starting point.
M M
42. As far as aggravating factors are concerned, there is no
evidence to show that D1 or D2 had used any equipment to burgle
N N
into the premises. On the other hand, the offence was committed
by more than one person, i.e. D1 and D2 together, and this
O O
constitutes an aggravating factor according to Cheng Wai Kai. I
therefore adjust the starting point upwards by 2 months. In
P P
other words, I find the appropriate starting point for the
sentence in respect of the 1 st Charge to be 38 months’
Q imprisonment. Q
R 43. As far as mitigating factors are concerned, D1 pleads R
guilty. He is entitled to the usual one third discount of the
S sentence. S
T 44. Miss Crebbin for D1, and indeed Mr. Boyton for D2, T
submitted that but for the confession of each defendant, the
U prosecution would not have proved the charge against them. Mr. U
11
V V
A Vidler for the prosecution disputed that contention. To resolve A
the issue, the CCTV tape that captured the images of D1 and D2
B was played in Court. Having viewed the images, I am of the view B
that the images were not that clear, and each defendant had at
C least a reasonable fighting chance had they chosen to plead not C
guilty. Under these circumstances, and having considered the
D authorities submitted by Mr. Boyton, i.e. R v Ho Ming Sun D
(CACC461/1981), HKSAR v Ng Wing Chung (CACC176/2005) and HKSAR v
E
Tsang Kai On [2011] 2 HKLRD 340, I am prepared to increase the E
guilty plea discount to around 40% of the sentence.
F F
45. I have considered all other mitigating factors urged upon
me. I am sympathetic in particular to the predicament of D1’s
G G
girlfriend (or common law wife) and infant son. However,
nothing that has been said can in law amount to effective
H H
mitigating factor. For this reason, I find that the appropriate
sentence for D1 in respect of the 1 st Charge to be imprisonment
I I
for 22 months and 15 days.
J J
46. As far as the 2nd Charge is concerned, D1 failed to produce
his proof of identity to police officer when he was asked to do
K K
so. Fine is the usual penalty for this offence, and there was
no aggravating factor that takes the present case out of the
L L
norm. D1 is fined $150 and he is given 60 days to pay. In
default, he has to serve one day imprisonment, to run
M M
consecutively to the sentence imposed in respect of Charge 1.
N N
47. In respect of Case No. DCCC933/2012, it was clearly an
attempted burglary into premises used for domestic purposes. D1
O O
attempted to prize open the wooden door of the victimized
premises with a screwdriver. It must be apparent to him that
P P
the premises were still occupied. I find that 3 years’
imprisonment is the appropriate starting point.
Q Q
48. As far as aggravating factors are concerned, D1 did use a
R screwdriver in an attempt to break into the premises. However, R
the screwdriver was only a small tool or equipment, and the
S sentence should not be increased on this basis. In this case, S
D1 acted alone. I therefore find that there is no aggravating
T factor to increase the sentence. T
U U
12
V V
A 49. As far as mitigation is concerned, again, the only valuable A
mitigating factor is D1’s guilty plea. He is therefore entitled
B to one-third discount of the sentence. The proper sentence for B
this case is 2 years’ imprisonment.
C C
50. I now consider whether the sentences for these two cases
D should run concurrently or consecutively, whether wholly or in D
part. I have borne in mind the principle of totality which
E
means that the overall sentence should not be too long to E
jeopardize D1’s rehabilitation but it should be able to properly
reflect the overall criminalities of the offences. I have also
F F
taken into account the mitigation that has been urged upon me on
all occasions. I appreciate that D1 had been a conscientious
G G
citizen of the community in the past. I am of the view that an
overall sentence of about 33 months’ imprisonment is
H H
appropriate. To give effect to this overall sentence, I
sentence D1 as follows:
I I
DCCC626/2012
Charge 1: imprisonment for 22 months and 15 days;
J J
Charge 2: Fine $150, to be paid within 60 days; in default,
imprisonment for one day, to run consecutively to Charge 1.
K K
DCCC933/2012
24 months’ imprisonment, 10 months and 15 days to run
L L
consecutively to DCCC926/2012.
M M
51. The total sentence for D1 is therefore imprisonment for 32
months and 30 days.
N N
D2
O O
52. D2 is convicted of Charges 1 and 3 in Case No.
DCCC626/2012, and of Charges 1 and 2 in Cases No. DCCC966 &
P P
1186/2012 (consolidated).
Q 53. Mr. Boyton had pointed out that D2 committed the offences Q
because of his drug addiction. He therefore sought to argue
R that the Court might consider sentencing D2 to prison for one R
case and sending him to drug addiction treatment centre for the
S other. However, I rule against this option because, firstly, S
the two burglary offences, either on each own or accumulatively,
T were just too serious that a drug addiction treatment centre T
order is not appropriate; secondly, it will be wrong in
U sentencing principle to sentence a defendant to prison on the U
13
V V
A one hand, which is a punitive and deterrent sentence, and A
subject him to a drug addiction treatment centre order, which is
B rehabilitative in nature, on the other. It will be wrong for a B
sentencing court to impose sentences for different sentencing
C purposes at the same time. I find that the only suitable C
sentencing option for D2 is imprisonment.
D D
54. In Case No. DCCC626/2012, I noted the difference in the
E
versions of event given by D1 and D2 under caution. I agree E
with both counsels that there should be no difference in
sentencing on the roles played by D1 and D2 in the offence which
F F
was clearly a joint enterprise. For the same reasons as already
been explained in the case of D1, I adopt 38 months’
G G
imprisonment as the starting point in respect of the 1 st Charge.
H H
55. As far as the mitigating factors are concerned, as I have
already said, I will give D2 40% discount of the sentence to
I I
reflect his guilty plea and the fact that just on the CCTV image
alone the prosecution might not be able to prove the charge
J J
beyond reasonable doubt against him.
K K
56. I have also considered all the mitigation urged upon me by
Mr. Boyton, in particular the serious illness D2’s mother and
L L
the mental conditions of his parents. However, such matters can
hardly amount to effective mitigating factor. For these
M M
reasons, I find that the appropriate sentence for D2 in respect
of the 1st Charge is imprisonment for 22 months and 15 days.
N N
57. As far as the 3rd Charge is concerned, D2 failed to answer
O O
his court bail and remained at large for 3 months and 6 days
before he was re-arrested. He offered no explanation for his
P P
abscondence. In HKSAR v Wong Chi Hung (CACC300/2010), the
appellant had failed to answer his court bail and absconded for
Q 28 days before he was re-arrested. The starting point of 3 Q
months’ imprisonment adopted by the sentencing judge was
R approved by the Court of Appeal. R
S 58. In the present case, I adopt 3 months’ imprisonment as the S
starting point. In this instance, D2 is only entitled to a one-
T third discount of the sentence for his guilty plea. There is no T
other mitigating factor. He is sentenced to 2 months’
U imprisonment for Charge 3. U
14
V V
A 59. As far as the 1st Charge in Cases No. DCCC966 & 1186/2012 A
(consolidated) is concerned, the Pub was obviously business
B premises. Mr. Boyton submitted that imprisonment for 20 months B
after plea, which was the usual tariff for non-domestic burglary
C applied, was the starting point. In my view, since the Pub was C
inside a building pending redevelopment, the lower tariff that I
D have mentioned earlier is more applicable. I adopt 18 months’ D
imprisonment as the starting point.
E E
60. At the time of the offence, the police found a spanner
outside the premises near the co-accused of D2. In my view,
F F
even if this spanner had been used, it was just a small tool
that did not warrant an increase in sentence. However, D2
G G
committed this offence with another person. The starting point
is therefore adjusted upwards to 20 months’ imprisonment.
H H
61. The only mitigating factor is his guilty plea. He is
I I
entitled to one-third discount. He is therefore sentenced to
imprisonment for 13 months and 10 days.
J J
62. As far as the 2nd Charge is concerned, D2 had failed to
K K
answer his court bail and remained at large for 2 months and 21
days. He provided no explanation for his abscondence.
L L
Likewise, I adopt 3 months’ imprisonment as the starting point
and reduce it to 2 months’ imprisonment on account of his guilty
M M
plea which is the only mitigating factor.
N N
63. In respect of each case, I am of the view that the sentence
of bail offence should in principle run wholly consecutively to
O O
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
P P
overall sentence of about 31 months’ imprisonment is
appropriate. To give effect to this overall sentence, I
Q sentence D2 as follows: Q
DCCC626/2012
R 1st Charge: imprisonment for 22 months and 15 days. R
3rd Charge: imprisonment for 2 months, to run consecutively
S to Charge 1. S
T DCCC966 & 1186/2012 (consolidated) T
1st Charge: imprisonment for 13 months and 10 days.
U 2nd Charge: imprisonment for 2 months, to run concurrently U
15
V V
A with Charge 1, and 6 months and 15 days of the concurrent A
sentences are to run consecutively to the sentences for
B DCCC626/2012. B
C 64. The total sentence for D2 is therefore imprisonment for 30 C
months and 30 days.
D D
E E
W.K. Kwok
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
16
V V
A DCCC626/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 626 OF 2012
--------------------
C C
HKSAR
D D
v.
E MARIA MANINDER SINGH (D1) E
AMJED ALI (D2)
F F
--------------------
G Before: District Judge W.K. Kwok G
Date: 1 February 2013 at 1:10 pm
Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR
H Miss CREBBIN Diane Mervyne instructed by Messrs George H
Chan & Co. assigned by the Director of Legal Aid, for
I
D1. I
Mr. David BOYTON instructed by Messrs Jal. N. Karbhari
& Co. for D2.
J J
Offence: (1) Burglary (入屋犯法罪)
(2) Failure to produce proof of identity on demand
K K
(未能在規定下出示身分證明文件)
(3) Failing to surrender to custody without reasonable
L cause (無合理因由而沒有按照法庭的指定歸押) L
M M
**********
N DCCC933/2012 N
O IN THE DISTRICT COURT OF THE O
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 933 OF 2012
P P
--------------------
Q HKSAR Q
v.
R R
MARIA MANINDER SINGH
S S
--------------------
T Before: District Judge W.K. Kwok T
Date: 1 February 2013 at 1:10 pm
U U
1
V V
A Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR A
Miss CREBBIN Diane Mervyne instructed by Messrs George
Chan & Co. for Defendant.
B B
Offence: Attempted Burglary (企圖入屋犯法罪)
C C
**********
D D
DCCC966 & 1186/2012
(Consolidated)
E E
IN THE DISTRICT COURT OF THE
F HONG KONG SPECIAL ADMINISTRATIVE REGION F
CRIMINAL CASE NO. 966 & 1186 OF 2012 (Consolidated)
--------------------
G G
HKSAR
H H
v.
I AMJED ALI (D2) I
--------------------
J J
Before: District Judge W.K. Kwok
Date: 1 February 2013 at 1:10 pm
K K
Present: Mr Michael VIDLER, Solicitors on fiat for HKSAR
Mr. David BOYTON instructed by Messrs Jal. N. Karbhari
L & Co. for D2. L
Offence: (1) Burglary (入屋犯法罪)
M (2) Failing to surrender to custody without reasonable M
cause (無合理因由而沒有按照法庭的指定歸押)
N N
---------------------
O O
Reasons for Sentence
P P
---------------------
Q Q
1. Mr. Maria Maninder Singh (D1) and Mr. Amjed Ali (D2) appear
before me for sentence today. Each of them is involved in two
R R
cases. They are the two defendants joined in the same charge
sheet in Case No. DCCC626/2012. In addition, D1 is involved in
S S
Case No. DCCC933/2012, while D2 is involved in Case No. 966 &
1186/2012 (consolidated). They plead guilty to all the charges
T T
they are respectively facing in these cases.
U U
2
V V
A Case No. DCCC626/2012 (against D1 and D2) A
2. There are 3 charges. The 1st Charge is a joint charge
B against D1 and D2 for the offence of burglary, contrary to B
section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210,
C Laws of Hong Kong. The 2 nd Charge is against D1 only for the C
offence of failure to produce proof of identity on demand,
D contrary to section 17C(3) of the Immigration Ordinance, Chapter D
115. The 3rd Charge is against D2 only for the offence of
E
failing to surrender to custody without reasonable cause, E
contrary to section 9L(1) and (3) of the Criminal Procedure
Ordinance, Chapter 221.
F F
3. The facts admitted by both defendants revealed that a
G G
burglary took place on 1st May 2012 inside Flat B on the 3rd floor
(“Flat B”) of a building situated at No. 24 Ko Shan Road,
H H
Kowloon (“the Building”). On the same floor, there were two
other flats, i.e. Flat A and Flat C. At the time of the
I I
offence, the Building was awaiting for redevelopment. All flats
inside the Building were vacant except Flat B which was occupied
J J
by the victim Madam Cheng.
K K
4. On 1st 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
L L
were also closed. The victim had also locked the common iron-
gate on the 3rd floor before she left. At about 6 p.m., the
M M
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
N N
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
O O
ransacking inside Flat B. Upon checking, the victim found a LCD
television set, a laptop computer and a Rolex watch missing.
P P
The total value of the stolen property was $70,300.
Q 5. The CCTV camera installed at the ground floor of the Q
Building captured that on 1 st May 2012, D1 and D2 entered the
R Building together at 4:41 p.m. and left together at 5:28 p.m. R
They wandered nearly thereafter but entered the Building again
S at 5:43 p.m. They left the Building together at 5:51 p.m. with S
D1 carrying a black bag and D2 holding a large rectangular
T object covered with towel. T
U U
3
V V
A 6. On 22nd May 2012, D1 and D2 were intercepted by the police A
for enquiries.
B B
7. Upon enquiry under caution, D1 admitted that he went with
C his friend to steal copper pipes, but his friend then broke in C
Flat B to steal and asked him to act as a lookout. He was then
D arrested for burglary. Under further caution, D1 stated that D
his friend stole the property but he was not given any share.
E
In a subsequent video-recorded interview, D1 stated under E
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
F F
from outside the Building for him (D1) to take away. They then
met downstairs of the Building. Whilst he was walking up the
G G
Building, his friend broke into a flat on the 3 rd floor by
kicking open the door, and stole a television set. D1 also
H H
stated that he had a nickname called “Ah Dee”.
I I
8. Upon enquiry under caution, D2 admitted that he received a
call on 1st May 2012 from Ah Dee. Ah Dee told him that he was on
J J
the 3rd floor of the Building and that he had found some
valuables inside. D2 then went there to remove a television set
K K
downstairs. D2 was then arrested for burglary. Under further
caution, D2 stated that he had only removed a television set
L L
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
M M
subsequent video-recorded interview, D2 declined to answer any
question other than stating that he was a construction worker.
N N
9. Both D1 and D2 admitted that they had entered Flat B as
O O
trespassers and stolen property inside (Charge 1).
P P
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,
Q but D1 failed to do so. Under caution, D1 stated that he lost Q
his identity card in March 2012, but he had forgotten to make a
R report to the police (Charge 2). R
S 11. On 7th August 2012, D2 appeared in District Court in answer S
to the charge of burglary. His case was adjourned to 4 th
T September 2012 for him to apply for legal aid. He was granted T
court bail. However, he did not appear as appointed. A warrant
U of arrest was issued against him. He was re-arrested on 10th U
4
V V
A December 2012. Under caution, he did not provide any A
explanation for his failure to appear in court (Charge 3).
B B
Case No. DCCC933/2012 (against D1)
C 12. D1 is the only defendant. There is only one charge of C
attempted burglary, contrary to section 11(1)(a) and (4) of the
D Theft Ordinance, Chapter 210 and section 159G of the Crimes D
Ordinance, Chapter 200.
E E
13. The facts admitted by D1 revealed that he attempted to
enter Room B of a multi-cubicle apartment located at 4 th Floor,
F F
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
G G
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
H H
a report to the police. Two police officers arrived about 10
minutes later. They saw D1 prizing the frame of the wooden door
I I
of Room B with a screwdriver in his right hand which had a white
labour glove on. When D1 noticed the police officers, he
J J
immediately dropped the screwdriver onto the ground and tried to
flee, but to no avail. Another screwdriver and a bag were found
K K
lying on the ground. The victim confirmed that she had suffered
no loss, but she found some new prizing marks on the wooden door
L L
of Room B. D1 admitted that he attempted to enter Room B as a
trespasser with intent to steal inside.
M M
Cases No. DCCC966 & 1186/2012 (consolidated) (against D2)
N N
14. D2 is one of the two defendants in this consolidated case.
The 1st Charge is a joint charge against D2 and the other
O O
defendant for the offence of burglary, contrary to section
11(1)(b) and (4) of the Theft Ordinance. The 2nd Charge is
P P
against D2 only for the offence of failing to surrender to
custody without reasonable cause, contrary to section 9L(1) and
Q (3) of the Criminal Procedure Ordinance, Chapter 221. Q
R 15. The facts admitted by D2 revealed that a burglary took R
place in the morning of 13 th August 2012 inside a pub (“the Pub”)
S on the ground floor of a 3-storey building situated at No. 106 S
Boundary Street, Kowloon City. At the time of the offence, the
T building including the Pub was vacant and was under the T
management of a property management company. Mr. Chan, the
U person-in-charge of the property management company, visited the U
5
V V
A building on 10th August 2012 and found everything in order. A
Around 8 a.m. on 13th August 2012, Mr. Chan was alerted by his
B friend over the phone that the main door of the Pub had been B
opened, and that a foreigner was sitting outside the main door
C of the Pub. Mr. Chan made a report to the police. C
D 16. Police officers arrived at the building about 10 minutes D
later. They found the main door of the Pub seriously damaged.
E
It had been prized open. D2’s co-defendant was sitting outside E
the Pub with a 2 feet long spanner placed underneath an umbrella
on the ground beside him. The police officers entered the Pub
F F
and found D2 inside. They asked D2 why he was there, but D2
refused to answer. D2 was then arrested, and he remained silent
G G
under caution.
H H
17. The CCTV camera installed opposite to the Pub captured that
D2 and his co-defendant were hanging around the building at
I I
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
J J
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
K K
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
L L
co-defendant staying outside.
M M
18. D2 admitted that he had entered the Pub as a trespasser and
attempted to steal therein (Charge 1).
N N
19. D2 was charged with one count of burglary on 15 th August
O O
2012. He was granted court bail to appear on 19 September 2012
at Kowloon City Magistracy, but he failed to appear as
P P
appointed. A warrant of arrest was issued. D2 was re-arrested
on 10th December 2012. Under caution, he remained silent (Charge
Q 2). Q
R Criminal record R
20. D1 has one previous conviction in October 2011. For the
S offence of possession of dangerous drugs, he was fined $1,000. S
T 21. D2 has a clear record. T
U U
6
V V
A Personal and family background A
22. D1 is 25 years old. He was born in India. He came to Hong
B Kong in 1995 to join his parents and two elder brothers for B
family reunion. He studied up to Form 3 in Hong Kong. He then
C worked as an office assistant and a part-time transportation C
worker. He is single, but he has a girlfriend and a son aged 10
D months. His girlfriend and son are now living in the D
Philippines. D1 is now staying with his 1 st elder brother as
E
well as the wife and son of his 1 st elder brother. His parents E
and his 2nd elder brother are living apart.
F F
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
G G
in Hong Kong. He had been a recycling depot worker,
construction site worker, a security guard, and according to his
H H
counsel, a driver as well. D2’s parents are now in Pakistan
where his mother is receiving treatment for cancer and his
I I
father is looking after her. He has 5 younger siblings. He is
now cohabiting with his girlfriend in the home of one of his
J J
sisters.
K K
Pre-sentencing reports
24. I have considered the background report and drug addiction
L L
treatment centre report in respect of each defendant. It
appears that each defendant had a drug problem prior to their
M M
remand.
N N
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
O O
per week. His last dosage of cannabis and ice was in August
2012. Since D1 has already been remanded in custody for over 5
P P
months, he is no longer a drug addict and is therefore
considered not suitable for admission into a drug addiction
Q treatment centre. Q
R 26. D2 started taking ice in early 2012. Prior to his remand, R
he took ice almost every day. The last dosage was taken on 11
S December 2012. He is a drug addict, and is suitable for S
admission into a drug addiction treatment centre.
T T
Mitigation
U U
7
V V
A 27. Miss Crebbin, Counsel for D1, submitted that D1 had been a A
conscientious citizen in the community in various ways in the
B past, and that he committed these offences when he was B
unemployed and abusing drugs due to influences of unsavory
C people. C
D 28. As far as the May burglary offence was concerned, Miss D
Crebbin informed me that D1 initially only intended to act as a
E
lookout for D2 so that D2 would cut copper piping on the outside E
of the building which was not occupied, but when they discovered
that there was still a flat being occupied, they changed their
F F
plan. Miss Crebbin realized that D1’s version of event differed
from that of D2, but submitted that there was little difference
G G
in sentencing as far as the roles played by each defendant were
concerned. She stressed that D1 would not have committed the
H H
offence if he had not been under the influence of drugs because
drugs made him unable to think seriously of the consequences of
I I
his act.
J J
29. As far as the second attempted burglary offence was
concerned, Miss Crebbin informed me that D1 had taken cannabis
K K
and several cans of beer in the rooftop of the building prior to
the offence. When he left, he intended to patronize a
L L
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
M M
ajar. He then walked in and attempted to prize open the wooden
door of a room inside. Miss Crebbin stressed that D1 was
N N
clearly under the influence of drugs and alcohol, because he
would otherwise have been aware there might be people inside the
O O
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
P P
building before. Miss Crebbin also submitted that the offence
was not premeditated. The screwdriver which the defendant had
Q used was a tool he required frequently to repair his motor bike Q
which always broke down, but that screwdriver had been put
R inside a bag where D1 put his drugs, and on the day in question, R
his original intention was only going up to the rooftop of the
S building to take cannabis. S
T 30. Miss Crebbin accepted that in both cases, if imprisonment T
was the appropriate sentencing option, the normal tariff for
U domestic burglary would apply. However, she pleaded for a lower U
8
V V
A starting point on the ground that D1 did not fully appreciate A
what he was doing in both instances because he was under the
B influence of drugs, or drugs and alcohol. B
C 31. Miss Crebbin also submitted that the CCTV image would not C
be sufficient to lead to a conviction in respect of the May
D burglary because the image was not clear enough. D
E
32. Miss Crebbin stressed that D1 had pleaded guilty and was E
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
F F
take care of his common law wife. D1’s family members were also
supportive of him and will render him all the necessary help.
G G
Miss Crebbin produced letters written by D1 and Christian New
Life Association as well as the photograph of his son to plead
H H
for leniency.
I I
33. Mr. Boyton, Counsel for D2, informed me that D2 came from a
working class family. His parents have returned to Pakistan
J J
because his mother is receiving treatment there for cancer and
his father is looking after her. A medical certificate is
K K
produced to show that both parents are now suffering from
depression since they are aware of D2’s present incarceration.
L L
A letter from D2’s father for mitigation is also produced.
M M
34. Mr. Boyton stressed that but for D2’s confession under
caution to the May burglary offence, the prosecution would have
N N
difficulty to bring home a conviction because the CCTV image was
not clear enough to sustain a beyond reasonable doubt
O O
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
P P
was a man of previous good character, and he committed all these
offences because he was under the influence of drugs. Mr.
Q Boyton suggested that this Court might consider sentencing D2 to Q
drug addiction treatment center in respect of one case, and
R imposing a term of imprisonment for the other one. R
S Reasons for sentence S
35. Burglary is a very serious offence. It has been held by
T the Court of Appeal that save for the most exceptional cases, a T
custodial sentence is the appropriate sentence for an adult
U burglar even though he pleads guilty and has a clear record: U
9
V V
A HKSAR v Wan Ka Kit [2006] 3 HKLRD 9; HKSAR v Cheung Wing Sum A
(CACC321/2006).
B B
36. As far as the quantum of the sentence is concerned, the
C sentencing authorities are clear. For a domestic premises C
burglary, the usual starting point is 3 years’ imprisonment:
D Attorney General v Lui Kam Chi [1993] 1 HKC 215. For a non- D
domestic premises burglary, the usual starting point is 2½
E
years’ imprisonment: The Queen v Wong Man [1993] 1 HKC 80. For E
an opportunistic burglary into vacated premises inside a
building that has been re-possessed by developer awaiting
F F
redevelopment and the property inside the vacated premises are
of low value, the proper starting point is 18 months’
G G
imprisonment: HKSAR v Chau Man Ying (CACC439/2011). On the
other hand, if the offender uses a crowbar to break open the
H H
lock of the vacated premises and carries with him large quantity
of burglary equipment, a starting point of 2 years’ imprisonment
I I
will be justified because the offence is committed with
premeditation, and the offender has to be deterred from carrying
J J
burglary equipment with the intention of forcing his entry into
the premises of other persons: HKSAR v Shea Pat Chi
K K
(CACC196/2012).
L L
37. The starting point can be adjusted upwards if there are
aggravating circumstances: HKSAR v Cheng Wai Kai (CACC338/2007).
M M
Aggravating circumstances include using heavy instrument or
equipment in the burglary, or two or more persons committing the
N N
offence.
O O
38. With these general principles in mind, I now deal with the
sentences to be imposed on each defendant.
P P
D1
Q 39. D1 is convicted of Charges 1 and 2 in Case No. Q
DCCC626/2012, and of the only charge in DCCC933/2012.
R R
40. I have considered the facts of each case and the mitigation
S advanced by Miss Crebbin on behalf of D1. There is simply no S
ground that justifies the imposition of a non-custodial
T sentence. I had acceded to counsel’s request to call for a drug T
addiction treatment centre report. It was submitted that D1
U committed these offences because of his drug addiction. When U
10
V V
A calling for the report, I had made it clear that a drug A
addiction treatment centre order is an unlikely sentencing
B option in light of the gravity of the offences. Nothing that B
has been said in mitigation has changed my view. The fact that
C D1 was under the influence of drug, or both drug and alcohol, C
was not a special feature of the case or a mitigating factor
D that diminished the gravity of the offences since all such D
influences were all self-induced. Furthermore, D1 is not
E
suitable for admission into drug addiction treatment centre E
because he is no longer a drug addict. For these reasons, I
find that imprisonment is the only appropriate sentencing
F F
option.
G G
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
H H
that the burglary took place inside a building due for
redevelopment. All units inside except the victimized premises
I I
were unoccupied. Counsel for both defendants accepted that the
usual tariff for domestic burglary applied because the
J J
defendants were aware that the victimized premises were occupied
for domestic use at that time. For these reasons, I adopt 3
K K
years’ imprisonment as the starting point. In my view, the fact
that D1 was acting under influence of drugs, which was self-
L L
induced, was not a ground to lower the starting point.
M M
42. As far as aggravating factors are concerned, there is no
evidence to show that D1 or D2 had used any equipment to burgle
N N
into the premises. On the other hand, the offence was committed
by more than one person, i.e. D1 and D2 together, and this
O O
constitutes an aggravating factor according to Cheng Wai Kai. I
therefore adjust the starting point upwards by 2 months. In
P P
other words, I find the appropriate starting point for the
sentence in respect of the 1 st Charge to be 38 months’
Q imprisonment. Q
R 43. As far as mitigating factors are concerned, D1 pleads R
guilty. He is entitled to the usual one third discount of the
S sentence. S
T 44. Miss Crebbin for D1, and indeed Mr. Boyton for D2, T
submitted that but for the confession of each defendant, the
U prosecution would not have proved the charge against them. Mr. U
11
V V
A Vidler for the prosecution disputed that contention. To resolve A
the issue, the CCTV tape that captured the images of D1 and D2
B was played in Court. Having viewed the images, I am of the view B
that the images were not that clear, and each defendant had at
C least a reasonable fighting chance had they chosen to plead not C
guilty. Under these circumstances, and having considered the
D authorities submitted by Mr. Boyton, i.e. R v Ho Ming Sun D
(CACC461/1981), HKSAR v Ng Wing Chung (CACC176/2005) and HKSAR v
E
Tsang Kai On [2011] 2 HKLRD 340, I am prepared to increase the E
guilty plea discount to around 40% of the sentence.
F F
45. I have considered all other mitigating factors urged upon
me. I am sympathetic in particular to the predicament of D1’s
G G
girlfriend (or common law wife) and infant son. However,
nothing that has been said can in law amount to effective
H H
mitigating factor. For this reason, I find that the appropriate
sentence for D1 in respect of the 1 st Charge to be imprisonment
I I
for 22 months and 15 days.
J J
46. As far as the 2nd Charge is concerned, D1 failed to produce
his proof of identity to police officer when he was asked to do
K K
so. Fine is the usual penalty for this offence, and there was
no aggravating factor that takes the present case out of the
L L
norm. D1 is fined $150 and he is given 60 days to pay. In
default, he has to serve one day imprisonment, to run
M M
consecutively to the sentence imposed in respect of Charge 1.
N N
47. In respect of Case No. DCCC933/2012, it was clearly an
attempted burglary into premises used for domestic purposes. D1
O O
attempted to prize open the wooden door of the victimized
premises with a screwdriver. It must be apparent to him that
P P
the premises were still occupied. I find that 3 years’
imprisonment is the appropriate starting point.
Q Q
48. As far as aggravating factors are concerned, D1 did use a
R screwdriver in an attempt to break into the premises. However, R
the screwdriver was only a small tool or equipment, and the
S sentence should not be increased on this basis. In this case, S
D1 acted alone. I therefore find that there is no aggravating
T factor to increase the sentence. T
U U
12
V V
A 49. As far as mitigation is concerned, again, the only valuable A
mitigating factor is D1’s guilty plea. He is therefore entitled
B to one-third discount of the sentence. The proper sentence for B
this case is 2 years’ imprisonment.
C C
50. I now consider whether the sentences for these two cases
D should run concurrently or consecutively, whether wholly or in D
part. I have borne in mind the principle of totality which
E
means that the overall sentence should not be too long to E
jeopardize D1’s rehabilitation but it should be able to properly
reflect the overall criminalities of the offences. I have also
F F
taken into account the mitigation that has been urged upon me on
all occasions. I appreciate that D1 had been a conscientious
G G
citizen of the community in the past. I am of the view that an
overall sentence of about 33 months’ imprisonment is
H H
appropriate. To give effect to this overall sentence, I
sentence D1 as follows:
I I
DCCC626/2012
Charge 1: imprisonment for 22 months and 15 days;
J J
Charge 2: Fine $150, to be paid within 60 days; in default,
imprisonment for one day, to run consecutively to Charge 1.
K K
DCCC933/2012
24 months’ imprisonment, 10 months and 15 days to run
L L
consecutively to DCCC926/2012.
M M
51. The total sentence for D1 is therefore imprisonment for 32
months and 30 days.
N N
D2
O O
52. D2 is convicted of Charges 1 and 3 in Case No.
DCCC626/2012, and of Charges 1 and 2 in Cases No. DCCC966 &
P P
1186/2012 (consolidated).
Q 53. Mr. Boyton had pointed out that D2 committed the offences Q
because of his drug addiction. He therefore sought to argue
R that the Court might consider sentencing D2 to prison for one R
case and sending him to drug addiction treatment centre for the
S other. However, I rule against this option because, firstly, S
the two burglary offences, either on each own or accumulatively,
T were just too serious that a drug addiction treatment centre T
order is not appropriate; secondly, it will be wrong in
U sentencing principle to sentence a defendant to prison on the U
13
V V
A one hand, which is a punitive and deterrent sentence, and A
subject him to a drug addiction treatment centre order, which is
B rehabilitative in nature, on the other. It will be wrong for a B
sentencing court to impose sentences for different sentencing
C purposes at the same time. I find that the only suitable C
sentencing option for D2 is imprisonment.
D D
54. In Case No. DCCC626/2012, I noted the difference in the
E
versions of event given by D1 and D2 under caution. I agree E
with both counsels that there should be no difference in
sentencing on the roles played by D1 and D2 in the offence which
F F
was clearly a joint enterprise. For the same reasons as already
been explained in the case of D1, I adopt 38 months’
G G
imprisonment as the starting point in respect of the 1 st Charge.
H H
55. As far as the mitigating factors are concerned, as I have
already said, I will give D2 40% discount of the sentence to
I I
reflect his guilty plea and the fact that just on the CCTV image
alone the prosecution might not be able to prove the charge
J J
beyond reasonable doubt against him.
K K
56. I have also considered all the mitigation urged upon me by
Mr. Boyton, in particular the serious illness D2’s mother and
L L
the mental conditions of his parents. However, such matters can
hardly amount to effective mitigating factor. For these
M M
reasons, I find that the appropriate sentence for D2 in respect
of the 1st Charge is imprisonment for 22 months and 15 days.
N N
57. As far as the 3rd Charge is concerned, D2 failed to answer
O O
his court bail and remained at large for 3 months and 6 days
before he was re-arrested. He offered no explanation for his
P P
abscondence. In HKSAR v Wong Chi Hung (CACC300/2010), the
appellant had failed to answer his court bail and absconded for
Q 28 days before he was re-arrested. The starting point of 3 Q
months’ imprisonment adopted by the sentencing judge was
R approved by the Court of Appeal. R
S 58. In the present case, I adopt 3 months’ imprisonment as the S
starting point. In this instance, D2 is only entitled to a one-
T third discount of the sentence for his guilty plea. There is no T
other mitigating factor. He is sentenced to 2 months’
U imprisonment for Charge 3. U
14
V V
A 59. As far as the 1st Charge in Cases No. DCCC966 & 1186/2012 A
(consolidated) is concerned, the Pub was obviously business
B premises. Mr. Boyton submitted that imprisonment for 20 months B
after plea, which was the usual tariff for non-domestic burglary
C applied, was the starting point. In my view, since the Pub was C
inside a building pending redevelopment, the lower tariff that I
D have mentioned earlier is more applicable. I adopt 18 months’ D
imprisonment as the starting point.
E E
60. At the time of the offence, the police found a spanner
outside the premises near the co-accused of D2. In my view,
F F
even if this spanner had been used, it was just a small tool
that did not warrant an increase in sentence. However, D2
G G
committed this offence with another person. The starting point
is therefore adjusted upwards to 20 months’ imprisonment.
H H
61. The only mitigating factor is his guilty plea. He is
I I
entitled to one-third discount. He is therefore sentenced to
imprisonment for 13 months and 10 days.
J J
62. As far as the 2nd Charge is concerned, D2 had failed to
K K
answer his court bail and remained at large for 2 months and 21
days. He provided no explanation for his abscondence.
L L
Likewise, I adopt 3 months’ imprisonment as the starting point
and reduce it to 2 months’ imprisonment on account of his guilty
M M
plea which is the only mitigating factor.
N N
63. In respect of each case, I am of the view that the sentence
of bail offence should in principle run wholly consecutively to
O O
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
P P
overall sentence of about 31 months’ imprisonment is
appropriate. To give effect to this overall sentence, I
Q sentence D2 as follows: Q
DCCC626/2012
R 1st Charge: imprisonment for 22 months and 15 days. R
3rd Charge: imprisonment for 2 months, to run consecutively
S to Charge 1. S
T DCCC966 & 1186/2012 (consolidated) T
1st Charge: imprisonment for 13 months and 10 days.
U 2nd Charge: imprisonment for 2 months, to run concurrently U
15
V V
A with Charge 1, and 6 months and 15 days of the concurrent A
sentences are to run consecutively to the sentences for
B DCCC626/2012. B
C 64. The total sentence for D2 is therefore imprisonment for 30 C
months and 30 days.
D D
E E
W.K. Kwok
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
16
V V