HKSAR v. JAMSHIED MUHAMMAD (ALSO KNOWN AS MUHAMMAD JAMSHIED, MUHAMMAD JAMSFIED AND MUHAMMED JAMSHIED)

DCCC 72/2020

[2020] HKDC 946

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 72 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the re-amended summary of facts admitted by the defendant today.  In summary in August 2019 the defendant burgled a residential flat of a derelict building and in November 2019 burgled the storage shed of a shop.  Both burglaries were captured on CCTV. 

3.  The defendant was arrested the same day he committed the second burglary when he appeared nearby the shop while the police were conducting investigation.  The owner of the shop recognised the defendant from the CCTV footage whereupon the police intercepted and arrested the defendant.  The defendant’s fingerprint matched a fingerprint found on the wooden door of the flat burgled in August 2019. 

Charge 1

4.  In August 2019 the building at 223A Hai Tan Street in Sham Shui Po was awaiting demolition.  Nobody was living in the building however renovation work was being undertaken for the purpose of the demolition. 

5.  The 2nd floor flat was secured by a locked wooden door.  Access could also be gained from a rear door and windows.   Photographs of the 2nd floor flat have been submitted to court. 

6.  The contractor responsible for the renovation installed CCTV systems throughout the building including outside the 2nd floor flat and at the rear lane of the building.  A CCTV system comprising of a recorder box and a monitor screen were placed inside the 2nd floor flat.  

7.  At 3 p.m. on 12 August 2019 Mr Wong, the contractor, discovered that the monitor screen, valued at approximately $1,000, was missing from inside the 2nd floor flat.  Mr Wong viewed the CCTV footage from the camera located outside the 2nd floor flat and at the rear lane which captured the defendant at about 8:24 that morning trying to prize open the wooden door of the 2nd floor flat with an iron bar without success; at around 8:27 climbing over the rear wall from the rear lane into the building and at 8:41 walking out of the 2nd floor flat carrying a bag. I have had the opportunity of viewing the CCTV footage.  Screen captures from the CCTV footage have also been submitted to court.

8.  A report was made to the police who lifted the fingerprint from the wooden door.

Charge 2

9.  Mr Lee was the owner of a shop situated at the ground floor of No. 163 Yee Kuk Street in Sham Shui Po.  A shed was annexed to the shop and was used for storing miscellaneous items and goods.  The shed was secured by a door to the shop and a door connecting to the back alley and was covered by a canopy.  A CCTV camera was also installed inside the shed.  Photographs of the shed have been submitted to court. 

10.  At around 5:20 a.m. on 26 November 2019 Ms Wong, staff of the shop, stored some goods in the shed.  In the afternoon of the same day Mr Lee discovered that one hundred and eighty boxes of screwdrivers; eight boxes of light bulbs; thirty Chinese paintings and sixty-six comic books were missing.  The total value of the stolen property is about $4,660.

11.  CCTV footage captured the defendant at 5:27 that morning climbing down into the shed through a hole in the canopy and stealing the goods in the shed.  I have also had the opportunity of viewing this CCTV footage.  Screen captures from the CCTV footage have also been submitted to court.

12.  A report was made to the police who went to the shop to investigate the burglary at which time they arrested the defendant when he appeared nearby.  Under caution the defendant admitted committing the burglary.  The defendant led the police to his home on the 5/Floor of 165 Yee Kuk Street where two boxes of the stolen light bulbs were recovered. 

Mitigation

13.  In passing sentence, I have carefully considered the oral and written submissions of Mr Donald, including that the defendant, aged 37, came to Hong Kong from Pakistan in 2006 and is currently a Form 8 holder and has applied for judicial review of the decision to reject his refugee claim[2].

14.  I have read the defendant’s mitigation letter in which he explains that he committed the burglaries because he had no money and that he promises not to commit crime again[3].   

Starting point

15.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment and for burglary of non-domestic premises the starting point is 2 years and 6 months’ imprisonment.

Charge 1

16.  Taking into account that the flat was vacant and the building under renovation pending demolition, I am satisfied a lower starting point is appropriate[4]. 

17.  The defendant did not pass by an open door or vacant premises and steal food or items of little value[5]. The defendant was clearly looking for premises in which he could steal property for resale.  The CCTV footage shows the defendant using a crowbar and what looks like a screwdriver to prize open the wooden door.  Unsuccessful the defendant gained access from the rear.  When seen leaving the 2nd floor flat the defendant is not only carrying a bag but also what looks like a crowbar.   The defendant did not steal items of little value but a CCTV monitor valued at approximately $1,000. 

18.  I am satisfied the appropriate starting point for charge 1 is 2 years and 6 months’ imprisonment.   

Charge 2

19.  Mr Donald submits there was no actual break in, the shed had no roof and the defendant simply jumped over the wall and stole goods of little value[6].  I do not agree.  Again the defendant did not pass by an open door or vacant premises and steal food or items of little value.  The defendant had to climb into the shed where he stole items valued at about $4,660.

20.  I am satisfied the shed is part of the shop and that the appropriate starting point for charge 2 is also 2 years and 6 months’ imprisonment.   

Aggravating features

Persistent offender

21.  The defendant has appeared in court on ten previous occasions between 2010 and 2019 almost always for offences of dishonesty, including five convictions for burglary.

22.  The defendant last appeared in the West Kowloon Magistracy on 28 January 2019 when he was sentenced to 6 months’ imprisonment for attempted theft.  The defendant was released from prison on 24 April 2019[7]. Just over four months later the defendant committed the first burglary. 

23.  I am satisfied the defendant is properly to be regarded as a persistent offender and enhance the starting point on each charge by 3 months to 2 years and 9 months’ imprisonment. 

Commission of offences by refugees or torture claimants

24.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  I am satisfied offences of burglary affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

25.  By reason of the defendant’s Form 8 status I enhance the starting points by a further 3 months to 3 years’ imprisonment[8].

26.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 2 years’ imprisonment.

Totality

27.  Where the offences were committed in different premises against different victims on different dates consecutive sentences should be imposed.  The two burglaries are separate and distinct, committed over three months apart.  I am satisfied a total sentence of 2 years and 9 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[9].  

Sentence

28.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years’ imprisonment;

Charge 2 – 2 years’ imprisonment with 9 months consecutive and 15 months concurrent to charge 1;

The total sentence to be served by the defendant is 2 years and 9 months’ imprisonment.