HKSAR v. HUSSAIN MAJID

DCCC 723/2022

[2024] HKDC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 723 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary".

Summary of Facts

2.  Madam Rahayu (PW1)  was the owner of a vegetable store situated at Ground Floor, Hang Fu Building, No.38 Yau San Street, Yuen Long ("the Shop").

3.  About 9:30 p.m. on 23 May 2022, PW1 closed the Shop for the day.  Coins in the sum of $300 were kept in the cashier counter.  When she left, PW1 forgot to lock the rolling gate after pulling it down. 

4.  PW1 returned to the Shop around 6:30 a.m. on 24 May 2022.  The rolling gate was pulled down in the same way when she left the night before.  Upon entering the Shop, PW1 found the top drawer of the cashier counter open with all the coins missing.

5.  CCTV footage of the Shop captured a non-Chinese male pulling up the rolling gate at 10:48 p.m. on 23 May 2022.  He entered the Shop and took the coins from the cashier counter.  PW1 alerted the Police.

6.  About 1:50 p.m. on 25 May 2022, PC 15044 (PW2)  stopped the defendant for enquiry at Yau San Street suspecting him being the culprit who burgled the Shop.  PW2 asked the defendant to produce his identity document, but he was unable to do so.  The defendant said his name was Majid and that he was Pakistani.  He claimed that he has been staying in Hong Kong for 20 years.  He also claimed that he had lost his Hong Kong identity document about 4 months ago, but did not report it.

7.  PW2 arrested the defendant for "Burglary" and "Failing to produce proof of identity".  He remained silent at the scene.  When he was taken to a police station, his Form 8 holder status was revealed.  Upon search, coins in the sum of $174 were found on him.

8.  In his record of interview, the defendant claimed that he has been homeless and out of money for food since a few months ago.  In the evening on 23 May 2022, he noticed that there was no padlock on the rolling gate of the Shop.  He went inside and found a basket of coins.  He put the coins in a plastic bag and went to Fung Cheung Road Garden to sleep.  He had spent some of the coins on food and cigarettes.  The $174 found on him were the remaining coins.

9.  With the defendant's consent, the Police searched his sleeping spot at Fung Cheung Road Garden.  A khaki vest was found.  The burglar captured by CCTV footage wore a similar vest.

Mitigation & Sentence

10. The defendant is 39 and has 5 conviction records, which included 1 "Theft" (shoplifting)  offence. He came to Hong Kong from Pakistan in 2009 and is a Form 8 holder. He said he has no family in Hong Kong or elsewhere. He also said he was homeless at the time of his arrest. He has nothing to say in mitigation, except "I'm sorry".

11. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise)  to seek refuge in another country. I understand that the verification of a non-refoulement claim can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong.

12. As a Form 8 holder, although the defendant is unable to earn any income, his basic needs such as housing and food are provided for by the government and/or NGOs. In any event, having no money for food is no mitigating factor for committing a crime.

13. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[1]. By its nature as well as the circumstances of its commission, the present burglary offence clearly has a serious detrimental effect on the community at large. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I would increase the starting point to 33 months because of the defendant's Form 8 holder status.

14. Regarding the discount for his guilty plea, I have reviewed the procedural history of this case. I accept that though unrepresented, the defendant has all along indicated his intention to plead guilty to the charge. In fact, this case was fixed for "plea & sentence" on 3 occasions (namely 5 October 2023, 19 October 2023 and 31 January 2024)  to be heard by 3 different judges. For reasons which were not attributed to the defendant's fault, the first two judges did not accept his guilty plea on 5 or 19 October 2023. For reasons unknown and which I need not explore, the defendant pleaded not guilty to the charge before the third judge on 31 January 2024, which led to a 2-day trial being fixed for 18 March 2024 before me. On that day, the defendant unequivocally pleaded guilty to the charge and admitted the Summary of Facts. Since he is unrepresented, I would treat him as having made a timely guilty plea and grant him the full one-third discount. With that, the sentence is reduced to 22 months.

15. Since the defendant is unrepresented, I have asked prosecuting counsel Mr. Marray for his realistic assessment of the strength of the evidence against the defendant. With his usual fairness, Mr. Marray informed me that PW1 can no longer be located and that the Shop has been closed down. The CCTV footage does not clearly show the face of the burglar, even though he did not wear a mask. The remaining evidence against the defendant would be his record of interview and the khaki vest found at his sleeping place. In other words, the only evidence against the defendant now comes from his own admissions. On this basis, I grant him an additional discount of 1 month[2]. Apart from the above, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 21 months' imprisonment.