HKSAR v. MOHAMMAD MURSALEEN

DCCC974/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 974 OF 2008

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Reasons for Sentence

1.  The defendant pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, and one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

2.  Summary of facts reveals that the defendant and his accomplice were found by PW1, one house owner, inside his apartment early in the morning on 15 July 2008.  PW1 noticed missing of money from his house and began to question the defendant.  During the meantime, the defendant's accomplice fled the scene.  Realising the situation he found himself in, the defendant then begged PW1 not to report the matter to the police and that he would return all properties to PW1.  Soon, he too disappeared from the scene.

3.  A number of items including wallet, gold rings, watches, mobile telephone and cash had been found later to be missing from PW1's apartment.  They valued approximately HK$29,000.

4.  Three days later, the defendant was intercepted by police.  Apart from PW1's wallet, ID card and China Re-entry Permit, the police also found 4.83 grammes of cannabis resin, 0.14 gramme of heroin and 0.01 gramme of midazolam on the defendant's body.  He was thus arrested.

5.  The defendant was originally charged for burglary.  It was later changed to one of theft because, presumably, it was accepted by the prosecution that when the defendant and his accomplice entered the subject apartment at the beginning, they were no more than rendering assistance to PW1's son who was drunk and found lying on the street earlier.  The version put up by the defendant seems a bit bizarre to me for it would be normal for anyone to render assistance in such situation to ascertain the true identity of the drunken man from the occupants of the house before allowing themselves into the apartment. 

6.  Be that as it was, by the time the defendant and his accomplice were putting properties into their pockets, there was no doubt in my mind that they knew they were acting in excess of whatever permission, whether expressed or implied, given.  That can be reflected from the defendant's begging for not reporting the matter to the police and making promises to return all properties. 

7.  Although the defendant was not charged and convicted of burglary, the facts presented so far bear almost all the hallmarks of a case of domestic burglary.  In respect of burglary committed in domestic premises, the normal starting point is one of 3 years' imprisonment.  In relation to the present case, given the slightly unusual facet of the case and the seemingly acceptance by the prosecution of that facet, I am of the view that the appropriate starting point can be lowered by 6 months to reflect that fact. 

8.  Although the defendant claims that he only stole one I-phone, the undisputed fact is that he was stopped by police with PW1's wallet and identification documents.  Further, he pleaded guilty to theft committed jointly by himself and his accomplice.  In my view, his culpability is at par with his accomplice.  Having taken all matters into account, I am of the opinion that the appropriate starting point in this case for the 1st charge is one of 30 months' imprisonment.

9.  In respect of the 2nd charge, this is his seventh similar conviction.  The defendant had been sentenced for fine, to DATC and prison.  Past sentences do not seem to deter the defendant from consuming drugs.  However, I note the quantities of drugs in question are small.  It seems, given his past record, that they were for his own consumption more than anything else.  Further, there is also little evidence to suggest that the drugs in question might fall into other's hands.  In other words, there is little latent risk in this case.  I therefore do not propose to increase the sentence in respect of charge 2. 

10.  As such, in respect of the 2nd charge, 9 months is adopted as the starting point.  For the two offences the defendant pleaded, he will be given the usual one-third discount.  As such, for the 1st charge he is sentenced to 20 months' imprisonment; for the 2nd charge he will serve 6 months' imprisonment.

11.  The 1st and the 2nd charge relate to two separate incidents and have no logical connection to each other.  They should be treated individually.  The remaining consideration for me is the total sentence.  Having considered all the circumstances, I do not see any justification in passing any concurrent sentences, whether wholly or partially.  The 6 months sentence is therefore ordered to be served consecutively to the first.

12.  Please stand up.  For the two offences the defendant stands convicted, he is sentenced to 26 months' imprisonment.