HKSAR v. ZARSHAD

DCCC 110/2020

[2020] HKDC 761

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2020

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REASONS FOR SENTENCE

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1.  D2 pleaded guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Cap 210.

2.  Full particulars of the offence are set out in the summary of facts admitted by D2. 

The Facts

3.  Ms Chan inherited a flat at 7/F of a residential building on 15 Temple Street, Yau Ma Tei, Kowloon (“the Flat”), from her father, together with his belongings.  She did not live in the Flat but kept some of her own belongings there, and visited it once every few months.

4.  The Flat was secured by a wooden door and metal gate which in turn was secured by a metal chain and a combo lock.  The combo lock was unlocked after the offence.

5.  On 1 November 2019 at about 12 noon, Ms So, who lived in 8^th Tenement Floor, 17 Temple Street, across from the Flat, heard a loud bang and saw from her door’s peephole that two males, including the D2 were entering the Flat. PW2 placed her mobile phone camera against the peephole and captured how the two males subsequently left the Flat about 5 minutes later, carrying some bags and paintings. D2 was carrying a white cloth which he used to wipe the metal gate when he was leaving the Flat.

4.  By this time the police had already received a report from Ms So and had arrived downstairs in the vicinity of 15 Temple Street.

5.  D1 was intercepted at street level in the vicinity of 15 Temple Street.  He was at the time of interception carrying a Chinese ink painting and a red, white and black nylon bag containing 9 ink paintings and 3 books.

6.  Police also found a purple handbag (containing some jade) discarded at the staircase of the 15 Temple Street. The purple bag contained one pair of red pliers, some green coloured stones, some bracelets and necklaces coloured yellow, black, green and white, four green bracelets and nine silver rings each with a green stone.

7.  Ms Chan identified the above items mentioned above as belongings from the Flat with an estimated total value of about HK$5,000.

8.  When D2 saw the police he fled upstairs, climbed out onto some scaffolding and escaped to an adjacent building.  He was pursued by the police and intercepted at the adjacent building.  Upon interception, D2 was found to have upon him stolen properties from the Flat, being one red pendant, four coins and seven green stones.

Previous convictions

11.  D2 has 4 convictions from 3 court appearances. The last conviction was for two burglaries offences in July 2017 when he was sentenced to 28 months’ imprisonment in total. There were two other convictions including theft and possession of dangerous drug which happened in 2016 and 2017.

Mitigation

12.  D2 is a Hong Kong permanent resident. He is not a Form 8 holder. He is married man. He has a 9 years’ old daughter and his wife lives in Hong Kong and is a domestic helper. D2 has a medical problem relating to his urinary tract.

13.  In the mitigation letters prepared by D2, he said he is sorry for what he had committed. In fact, he had a job. However, due to the social protest, he got fired in his job. He is now planning to return to Pakistan to look after his aged mother after the release from custody.

14.  In the present case, all property stolen were recovered.

Sentence

15.  In sentencing, I take into consideration the whole circumstances of the case including its nature and facts, background of the defendant, as well as mitigation put forward on his behalf by Mr Whitehouse.

16.  The usual starting point for burglaries of domestic premises is one of 3 years’ imprisonment. The reason burglary of domestic premises attract a higher starting point is explained in the case of HKSAR v Ng Wai Hing, CACC 621/2002:-

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.”

17.  In the present case, the Flat in question, unoccupied for years at the material time, had clearly been left derelict by its owner. There was no risk of confrontation with the occupants in their own home. Since nobody lives in the Flat, it will not invade the privacy and security of the tenants’ homes, leaving them with a sense of violation and insecurity. I

find that it would be fair to treat the burglary as being of non-domestic premises. I take 30 months as starting point.

Aggravating factors

18.  There is an aggravating feature, i.e. D2 was acting in concert with another person in the commission of the burglary. For that matter, it warrants an enhancement of 3 months on top taking the starting point to 33 months.

19.  It should be noted that I acquitted D1 in the same case because I believe that D1 entered as a trespasser of the Flat but lacked the intention to steal. I accepted that D1was asked by D2 to move the stuff for D2. In my view, D2’s guilty plea is not inconsistent with the facts admitted by D2.

20.  Another aggravating feature is that D2 got two similar burglary convictions in July 2017. He was last released from the prison in December 2018. Yet, in less than a year, he committed the present offence. For this second aggravating factor, I enhance the sentence by 3 months. The enhanced sentence would then be 36 months’ imprisonment.

Discount

21.  In considering whether there are exceptional circumstances of D2’s health issue, I have borne in mind that said by the Court of Final Appeal in Yip Kai Foon v HKSAR (2000) 3 HKCFAR 31 that under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. D2 can seek very good medical treatment within the custody.

22.  D2 had entered timely pleas of guilty and is entitled to the full one-third discount. Apart from this, I see no other mitigating factor which warrant any further reduction of the sentence. I therefore sentence him for 24 months’ imprisonment.