HKSAR v. AHMED JUNAID

DCCC 607/2022

[2023] HKDC 570

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 607 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. The defendant pleaded guilty, admitted the facts and was convicted accordingly.

FACTS

2.  The restaurant “Dapoer Kita” situated on G/F, 31 Haven Street, Causeway Bay was being burgled in the early hours of 19 February 2022.  The restaurant’s door was secured by metal chains affixed to the entrance sliding doors hooks with two padlocks when the staff left the night before. The restaurant’s door hook was broken when the staff returned on 19 February. Cash of $1,500 in the cash register and a Sony mobile phone placed near the cash register were stolen.  The total loss was $3,000.

3.  CCTV in the vicinity of the restaurant captured D entering the restaurant at 4:04 am and leaving at 4:09 am.  D was arrested at his residence on 21 February for the burglary.  Under caution, D admitted he stole the money and the phone because he was in debt.  D further admitted in a video-recorded interview held on the following day that he brought a palm-sized cutter from his residence to the restaurant and used the cutter to cut the door “hook” to gain access.  He threw away the cutter on his way back home.  He had a debt of $5,000, he had used the cash and the phone stolen to pay his debt.

4.  D is a Form 8 holder.

BACKGROUND/MITIGATION

5.  The defendant aged 39, a Form 8 holder.  He arrived in Hong Kong in 2002.  Refugee status has been granted, his extended family has relocated to New York, his relocation still pending the final documentation with the America Consulate.  This has been the situation when he was sentenced in 2019. 

6.  He is single but had a girlfriend who was pregnant at the time of his arrest, he was detained since then.  He has not been in contact with the girlfriend since his arrest on 21 February 2022.  He did not apply ISS, and relied on his family in US and friends in Hong Kong.  At the time of his arrest he was residing with his friends and incurred debts that he not able to pay off.

7.  The defendant has 8 previous convictions since 2008, mostly related to dishonesty, including 3 burglaries (2009, 2017 and 2019).  Since 2009, most of his time was spent behind the bar.  He was last sentenced to serve 26 months in 2019 and was released on 15 April 2020 and he committed the present case on 19 February 2022.  

Sentence

8.  The customary starting point of sentence for non-domestic burglary is 30 months’ imprisonment.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. 

9.  Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai CACC338 & 339/2007 a case of burglary of non-domestic premises:-

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see Rv Wong Man unreported, CACC 372/1992). The starting point can be adjusted upwards if there are aggravating circumstances such as: (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences.”

10.  The defendant here was not an opportunist, he went with a cutter and broke the door to gain access and stole therein.  He is a Form 8 holder, he started committing offence in 2008, with 3 previous similar convictions, the last two burglary convictions were in 2017 and 2019. 

11.  In persuading me to adopt a lower starting point, the defence referred to the sentence in the case of Wong Wai-ho DCCC787/2021.  The court adopted a lower starting point of 25 months instead of 30 months for non-domestic burglary where there was no forcible entry and enhanced by 2 months for the facts that the defendant made use of his knowledge acquired (i.e. where the cash was kept)  when he worked in that stall.  

12.  The defence also referred to the case of Pandi Gurmeet Singh DCCC 44/2021.  This was a case of sneaking, the defendant committed the burglary together with WP.  The plastic roller shutter gate to the shop was halfway shut, it was WP who sneaked into the shop and snatched the handbag placed near the entrance.  The defendant in that case was the lockout.  The court accepted the opportunistic nature and adopted a lower starting point at 21 months, but enhanced it by 3 months for the facts that the defendant was a Form 8 holder. 

13.  The factual background of the present case was different.  The defendant went to the restaurant with a cutter, he broke the door to gain entry.  There was clear evidence of forcible entry.  Yet I agreed it was not a sophisticated one and I would adopt the usual 30 months as starting.  And enhanced it by 3 months for the facts that the defendant was a Form 8 holder at the time of the commission of the offence, making a total of 33 months. 

14.  The defendant is a recidivist.  He was released from prison on 8 September 2018 and committed DCCC 329/2019 on 29 September 2018.  His persistence in committing criminal offences has been taken as an aggravating factor and enhanced the starting point by a further 3 months in DCCC 329/2019. I noted in the present case he was released on 15 April 2020 and committed the present burglary on 19 February 2022, almost 2 years since his last case.  That being the case, I will not make further enhancement on this occasion.  But the defendant is warned, should he reoffend again, this will be an aggravating factor as in DCCC 329/2019.

15.  The defendant has indicated his guilty plea from an early stage, he is entitled to the full 1/3 discount but I do not consider there to be any further mitigating factor.

COMPENSATION

16.  The defendant offered to compensate the victim by borrowing from his relative and friend and requested time for the arrangement.  Yet the defence in mitigation said his repeated transgression of the law was a direct outcome of his immigration status and his desperate financial status.  He has been remanded since his arrest.  If he by any mean able to compensate the victim, he could have made the arrangement before his sentence.  He committed the present offence because he was unable to repay a $5,000 debt.  I do not consider he is in a position to compensate the victim.  I make no order as to compensation. 

ORDER

17.  The defendant is sentenced to 22 months’ imprisonment.