HKSAR v. ALI MUMTAZ

DCCC 449/2023

[2024] HKDC 668

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 449 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant in this case has pleaded guilty to an indictment that contains three charges of burglary and in fact on three consecutive days at the same location the defendant stole from premises quantities of copper pipe, electric wire and a trolley.

2.  The offences were committed at the “Tim Ho Wan, the Dim-Sum Specialists”, the Ground Floor, 9-11 Fuk Wing Street in Sham Shui Po and all the burglaries occurred on the 19^th, 20th and 21^st days of November 2022 respectively.  At the time, renovation work was being carried out at that property which is a commercial premises, namely the shop.

3.  In respect of the 1^st charge, work had been completed around 1800 hours on 18 November.  The entrance to the shop was locked and copper pipes valued at about $8,000 were left on a trolley.  Valued at some $400 were two rolls of electrical wires valued at $1,500 left next to the trolley.  On 19 November, this property had gone missing.  The CCTV of the shop showed the defendant entering the shop near the back door, placing the property in some boxes then taking it away on a trolley via the back door.

4.  That night, that is 19 November, the property was again left locked and on 20 November some 20 copper pipes valued at about $10,000 had been stolen and again CCTV cameras showed the defendant taking these items together with some electrical wire.

5.  Again, on the 3^rd charge on 20 November when the shop was again left locked and then on 21 November some $20,000 of copper wire had been found to be taken.  The CCTV showed the defendant entering and taking those items.

6.  Defendant was arrested on 21 November and admitted the offences.

7.  As far as defendant’s background is concerned, at the time the statement was taken he was 48 years old and educated in Hong Kong up to Secondary 4 level.  He is described as a Pakistani male, unemployed at the time of his arrest.

8.  The defendant has a number of previous convictions dating back to 2012.  There are 17 total appearances in court for offences such of dishonesty such as theft and going equipped for stealing, offences such as possession of dangerous drugs.  Of relevance to today’s hearing, on 8 September 2015, defendant was subject to a sentence of 12 months’ imprisonment for burglary and then on 28 September 2022, for three offences of burglary he was sentenced to a total of 22 months' imprisonment.

9.  And the defendant has indicated a plea of guilty from an early stage so he is entitled to a one-third discount.

10.  I obtained a background report on the defendant as he was unrepresented.  The defendant attributes his committing this offence to greed. He has been unable to get consistent work since about 2008 when he had an injury and commits these offences to help solve his financial problems. Defendant appears remorseful and ready to accept legal responsibilities.  He is certainly prepared to admit full responsibility for these offences.

11.  As far as sentencing is concerned, I must sentence the defendant for the total of three charges of burglary committed on consecutive days at a non-domestic premises.  There is a guideline sentence.  The starting point for sentence for a person of clear record committed after trial for an offence of burglary of a non-domestic premises is 30 months' imprisonment.  This starting point can be subjected to be uplifted for any aggravating factors.  There is nothing in the commission of the offence itself which would warrant the uplift.  There is no sophistication involved in these offences.  The defendant was able to enter the shop and take the items inside.

12.  However, there is one factor that would justify that uplift and that is the fact the defendant has previous convictions for the same offence and in fact recent previous convictions for a similar offence.  I am told the defendant’s release date was in October of 2022 and that these offences were committed in November of 2022.  I consider this is a failure of deterrence in sentencing in the past.  That is an aggravating factor which warrants an uplift of sentence.  I shall uplift each sentence by 6 months' imprisonment to reflect that fact, thus the starting point for sentence on each charge will be one of 36 months' imprisonment.

13.  As the defendant has indicated a plea of guilty from an early stage he is entitled to a full one-third discount in respect of each charge.  This leads to a sentence of 24 months' imprisonment on each charge.

14.  There are three offences committed on separate days.  It is possible for the court to order that those sentences be served consecutively, however, to do so would lead to an excessive sentence.  The court must look at the overall totality.  It is a repeat offence at the same premises.

15.  What I shall simply do is this.  I shall order that the sentences on the first two charges be served concurrently to each other and the sentence on the 3^rd charge be served 6 months consecutively to charges 1 and 2, leading to an overall sentence of 30 months’ imprisonment for these offences.  So it is a total sentence of 30 months' imprisonment.