HKSAR v. AZIZ AHMED

DCCC 429/2020

[2021] HKDC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 429 OF 2020

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Reasons for Sentence

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1.  The Defendant, a Pakistani and also a Form 8 Recognizance holder, pleaded guilty before me to one count of burglary.

2.  The burglary occurred at a building site on Hai Tan Street, Sham Shui Po where two blocks (Block A and B) were under construction. Various security measures were in place at the site including CCTV security systems, security guards to patrol the site and the fencing of the site with water-filled barriers and locked gates.

3.  At around 2:10 a.m. on 12 March 2020, two Pakistani security guards whilst patrolling on the site came across two Pakistani men near Block A, one of the them was talking on the phone; on seeing the security guards, the man on the phone spoke to the person on the other end of the line in Punjabi “The security guard is there. Go away quickly” and then they took to their heels.

4.  One of the security guards went to Block B and discovered that the water-filled barrier at the entrance was moved to one side and a moment later saw another two Pakistani men (one of them was the defendant) coming out from inside. The guard questioned their presence to which the defendant replied in Punjabi “Nothing we are leaving”.

5.  When the guard tried to stop the defendant, the other man took the opportunity to flee; a struggle ensued between the guard and the defendant, the other guard then joined in and eventually they managed to drag the defendant into Block A and locked him inside. The police were notified.

6.  The defendant admitted to the responding officers that he entered Block B to steal but he did not burgle. While at the scene, the officers recovered certain clothing belonging to the defendant dropped off during the struggle; they were a black hoodie, a black cap, a wristband and a dark blue jacket with a pair of pliers in its left pocket.

7.  The defendant, aged 41, has amassed 9 prior convictions over the past 12 years, 6 of them are theft and the rest are to do with drugs one of which was drug trafficking. His last conviction is theft back in December 2018 for which he was sent to prison for 10 months.

8.  In mitigation, the court heard that the defendant came to Hong Kong legally in 2001 and later applied for refugee status; he has now lived here for 20 years, almost half of his life here.

9.  Counsel for the defendant, Mr Whitehouse, submitted that the defendant lived here for 7 years before first offending possibly because of the limited income and prohibition against working he turned to drugs and inevitably this led him to commit other offences.

10.  Mr Whitehouse further submitted that the offence obviously was not planned and not professional and it was opportunistic. The building site was only half complete where it can be seen that it was unlikely that anything of value could have been stolen nor any damage done.  

11.  The CCTV footage was played in court which showed that two persons entered Block B through the gap between the water barriers, but before that, they had to move a water barrier to one side to leave a gap to go in, and it was accepted by the defence one of them was the defendant.

12.  Mr Whitehouse emphasized the fact that the defendant was only in and out of the site in less than a minute, and submitted that the defendant’s conduct in the circumstances was no more than a sneak thief. 

13.  He likened the present case to the situation in Cheung To Ming CACC 406/2005 and urged the court to treat the defendant as a “sneak thief” which would warrant a departure from the sentence norm of 30 months for non-domestic burglary to one of 18 months.

14.  “The defendant claims he was acting alone though the facts show that another man was with him. Whatever the truth this other man took no part in the offence and therefore this should not be regarded as an aggravating circumstance,” said the defence counsel.

15.  Insofar as Form 8 status was concerned, Mr Whitehouse suggested that the enhancement, if any, be no more than 3 months.

16.  First of all, I find it difficult to accept that the other man took no part in the offence, bearing in mind the defendant was there to steal. Clearly the defendant was targeting the building site in question, and just why would he want to be accompanied by “an innocent person” in the course of his committing a crime? Undoubtedly the other man was his accomplice who was fortunate enough not to be caught; to say that he was not part of the crime stretches one’s credulity to the limit.

17.  Turning to the question of “sneak thief”, it is worth mentioning that the Court of Appeal in Cheung To Ming in reducing the starting point to 18 months described the case as the “most unusual circumstances” of the commission of the burglary. 

18.  It is not disputed that the defendant entered the building site to steal. It is clear from the facts of the case and the photographs of the site in question, it is not vacated pending redevelopment or anything, building works are to be carried out during the day and theft of valuable equipment and materials would be expected if more time were to be given to the defendant to complete “his job”.

19.  Undoubtedly, the four of them were in cahoots with one another – the fact that the defendant came out of Block B so soon after entering, he must have been alerted by the man who spoke on the phone “The security guard is there. Go away quickly”.

20.  The defendant together with another man deliberately moved the water barrier leaving a gap for entry, whichever way one looks at it, one could not argue that the defendant chanced upon an open door. Obviously, he had had planned the burglary in advance - he set out in the middle of the night to look for opportunity to burgle bearing in mind he had a pair of pliers in one of his jacket pockets - they targeted the building site in question and had someone acted as look-outs as well.

21.  Given the facts as they are, I do not see this as an opportunistic burglary. The guidelines for non-domestic burglary in the absence of aggravating factors is one of 30 months’ imprisonment, and in the case of Tong Fuk Sing CACC 216/1999 where the Court of Appeal reminded us that “Where Court of Appeal has laid down guidance for sentence, it’s not sufficient for sentencing judge merely to pay lip service to it before departing from it, sound reasons for such departure should be given.

22.  Counsel said that there was no damage done and no property stolen, but I think it all thanks to the security guard vigilance. Given the facts of the case, I would adopt the usual starting point, i.e., 30 months. There are aggravating features in the case in that the defendant is a Form 8 holder and he acted in concert with others, I would add 3 months for each matter, which brings the starting point up to 36 months.

23.  Giving one-thirds discount for his timely plea, the starting point is reduced to 24 months. There being no reasons for further reduction in sentence, the defendant is sentenced to 24 months’ imprisonment.