A A
B B
DCCC 95/2018
[2019] HKDC 748
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 95 OF 2018
E ____________ E
HKSAR
F v F
JARMANJIT SINGH
G G
____________
H H
Before: HH Judge Dufton
I Date: 4 June 2019 I
Present: Ms Nisha Mohamed, counsel on fiat, for HKSAR
J Ms Elizabeth Herbert, instructed by Lo & Fung, J
assigned by the Director of Legal Aid, for the defendant
K
Offences: (1) Attempted burglary K
(企圖入屋犯法罪)
L
(2) Breach of condition of stay L
(違反逗留條件)
(3) Failing to surrender to custody without reasonable cause
M M
(無合理因由而沒有按照法庭的指定歸押)
N N
REASONS FOR SENTENCE
O O
1. The defendant stands convicted after trial of one charge of
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attempted burglary of commercial premises, contrary to section 11 of the
Q
Theft Ordinance1 and section 159G of the Crimes Ordinance2 (charge 1). Q
R R
S S
T 1
T
Cap 210.
2
Cap 200.
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2
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B B
2. At the commencement of the trial the defendant pleaded
C guilty to one charge of breach of condition of stay, contrary to section 41 C
3
of the Immigration Ordinance (charge 2) and one charge of failing to
D D
surrender to custody without reasonable cause, contrary to section 9L(1)
E and (3) of the Criminal Procedure Ordinance4 (charge 3). E
F 3. Full particulars of the offences are set out in my reasons for F
verdict handed down today and the summary of facts admitted by the
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defendant on 14 May 2019.
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Attempted burglary
I I
4. In summary Flat B on the 2nd Floor of Sui Ying Industrial
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Building consists of eight subdivided flats, B1-B8 (“Flat B”). The main
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entrance of Flat B was a metal gate with an electronic combination lock.
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Mr Chiu Chung Kin rented Flat B3 for use as the business office of his L
company Compact-Tai On Joint Venture Limited (“Flat B3”).
M M
5. At 8 p.m. on 13 October 2017 Mr Chiu locked the wooden
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door of Flat B3 and left work. At around 11 p.m. SPC 52778 and PC
O 22394 went to Flat B to conduct an anti-burglary operation. After O
checking all the flats SPC 52778 and PC 22394 positioned themselves in
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the toilet.
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6. At around 2:58 a.m. on 14 October 2017 SPC 52778 heard
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the sound of someone pressing the electronic keyboard. SPC 52778 went
S to have a look and saw the defendant facing the door of Flat B3. The S
T 3
T
Cap 115.
4
Cap 221.
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B B
defendant was holding two cards in his right hand, one black and one
C white, which he used to slip inside the gap of the wooden door and at the C
same time turn the doorknob.
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7. When the defendant noticed the presence of SPC 52778 he
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immediately ran in the direction of the exit. SPC 52778 gave chase and
F stopped the defendant at the lift lobby. The defendant was arrested. The F
two cards were found in the right front pocket of the defendant’s trousers.
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H Breach of condition of stay H
I 8. The defendant was permitted to remain in Hong Kong until 4 I
September 2017. The defendant remained in Hong Kong after that date
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until his arrest on 14 October 2017.
K K
Failing to surrender to custody without reasonable cause
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M
9. The court record shows that the defendant was granted court M
bail for the attempted burglary on 16 October 2017. The case was
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transferred to the District Court on 5 February 2018.
O O
10. The defendant appeared in the District Court on 5 July 2018
P when the case was adjourned for mention to 21 August 2018. The P
defendant failed to surrender to court on 21 August 2018.
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R 11. On 9 October 2018 when the defendant applied for a visa R
extension his wanted status was unveiled. The defendant was then re-
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arrested for the attempted burglary.
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Mitigation
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12. In passing sentence, I have carefully considered everything
D said on behalf of the defendant by Ms Herbert. I take into account the D
defendant has no previous convictions.
E E
F Attempted burglary F
G 13. The correct starting point for a single burglary of non- G
domestic premises committed by a first offender of full age where there
H H
are no aggravating or mitigating features is 2 years and 6 months’
I imprisonment. I
J J
14. I am satisfied the starting point is not to be reduced by
K reason of the fact that the defendant was arrested before succeeding in K
breaking into Flat B3 and was therefore unable to steal anything.
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M
15. I find no grounds to reduce the starting point. The defendant M
is convicted and sentenced to 2 years and 6 months’ imprisonment.
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Breach of Condition of Stay
O O
P 16. The defendant had overstayed by just over one month when P
he was arrested for the attempted burglary. Ms Herbert explains that the
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defendant had applied for permanent residency and did not realise he
R needed to extend his visa. R
S 17. I am satisfied a starting point of 28 days’ imprisonment is S
appropriate.
T T
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B B
Late plea
C C
18. On 3 January 2019 when the case was set down for trial the
D defendant indicated a plea of not guilty. On 6 May 2019 a letter was D
written to court indicating a change of plea to guilty. The defendant
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having only indicated his plea of guilty 8 days prior to trial he is not
F entitled to a full one third discount. F
G G
19. I am satisfied a discount of 25% is appropriate 5 . The
H defendant is convicted and sentenced to 21 days’ imprisonment. H
I Failing to surrender to custody without reasonable cause I
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20. Ms Herbert tells the court that the defendant’s mother
K usually reminds the defendant, however the mother had returned to India K
and the defendant forgot that he needed to go to court. Once the
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defendant realised, about six day later, that he had forgotten to go to court
M Ms Herbert says he did not know he needed to surrender to court. M
N N
21. Taking into account that the defendant was re-arrested when
O he went to the Immigration Department to extend his visa which was O
nearly seven weeks after he failed to attend court, I am satisfied that a
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starting point of 3 months’ imprisonment is appropriate.
Q Q
22. Giving the defendant full credit for his plea of guilty reduces
R the sentence to 2 months’ imprisonment. R
S S
T T
5
See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
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Totality
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23. The three offences are separate and distinct for which
D consecutive sentences are appropriate6. Taking into account totality of D
sentence I am satisfied that a total sentence of 2 years and 8 months’
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imprisonment properly reflects the defendant’s overall criminal
F culpability on the three charges and takes into account the defendant’s F
personal circumstances and the seriousness of the offences7.
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H Sentence H
I 24. The defendant is convicted and sentenced as follows: I
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Charge 1 – 2 years and 6 months’ imprisonment;
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Charge 2 – 21 days’ imprisonment; and
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Charge 3 – 2 months’ imprisonment;
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N
The sentences on charges 2 & 3 are ordered to be served N
concurrent to each other and consecutive to charge 1. The total sentence
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to be served by the defendant is 2 years and 8 months’ imprisonment.
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R (D. J. DUFTON) R
District Judge
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T 6
T
See HKSAR v Ko Chun Hung CACC 71/2007 and HKSAR v Lo Kam Fai CACC 374/2014.
7
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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