HKSAR v. ZULIFKAR

DCCC 300/2024

[2024] HKDC 1836

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 300 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.  On 16 November 2023, a market assistant at the North Kwai Chung Market, No 116 Shek Yam Road, Kwai Chung (the Market)  discovered that two routers (each valued at HK$1,400)  in the meter room on the ground floor of the Market were missing.

3.  The Market’s CCTV captured the defendant entering the Market through a partly open gate around 11:49 pm on 15 November 2023 after the Market had closed for business.  He left the Market around 12:02 am the following day.

4.  The defendant was arrested on 18 November 2023 at the Market.  Under caution, the defendant claimed that he had removed the routers because they were emitting noises which disturbed his sleep.  The router shown by the defendant to the police was later confirmed by a representative of the company which had installed the missing routers as one of those routers.

Defendant’s Background

5.  The defendant is 45 years old.  He was born in Hong Kong and was educated up to Form 3 level.  Prior to his arrest, he was a delivery worker earning around $600 a day and was living with his parents and an elder brother in a public housing unit in Kwai Chung.

6.  He has 13 previous convictions, none of them were for burglary.  His most recent relevant convictions are 2 charges of attempted theft in 2017, for which he received a concurrent sentence of 4 weeks for each charge.

Mitigation

7.  Defence counsel Mr Oliver Davies pointed out that the starting point for commercial premises burglary is 2 ½ years’ imprisonment.

8.  HKSAR v Khan Asif [2010] 1 HKLRD 404 and HKSAR v Cheung To-ming [2006] 2 HKLRD 259 were cited for the principle that the starting point can be lowered for an opportunistic burglar who is akin to a sneak thief who walks into open premises.

9.  Mr Davies also quoted the Court of Appeal in HKSAR v Suen Chi Wai [2016] 1 HKC 343, 349 as saying:

“If it can be shown to the satisfaction of the sentencing judge that the intruder was stealing from the common areas only and not from inside individual homes, a starting point lower than that of the customary one may – not must – be justified.” (Original emphasis.)  The Court went on to say that “[T]he facts of the case and all its surrounding circumstances will determine whether and by how much that starting point should be reduced.”

10.  Mr Davies submitted that while the Court in Suen Chi Wai was dealing with a residential building, the rationale for the deduction in sentence was grounded in the observation that confrontation of an intruder “in the common areas of any building (residential or commercial)  is unlikely to cause as much alarm (or potential danger)  as confronting one in the confines of one’s home.”

11.  Two District Court cases[1] were referred to to show that a further reduction in sentence has been made for defendants who were willing to make compensation.

12.  As mitigating factors, Mr Oliver pointed out that the defendant gave a full and frank admission to the police on the spot and pleaded guilty at the earliest opportunity, for which he should be given 1/3 discount on sentence.

13.  The nature of the meter room from which the routers were stolen is akin to the common part of a residential building in Suen Chi Wai.  The room was separated from the business part of the Market, was not locked and was not forcibly entered by the defendant.  The court is urged to consider making a downward adjustment in the starting point for the defendant’s stealing from the common area of the Market.

14.  The offence was not pre-meditated.  The defendant was sleeping in the Market after taking drugs, and his sleep was disturbed by the noise emitted from the routers.  Acting on impulse, he took away the routers without using any tools or causing any damage.  There was no evidence that he planned to sell the routers for monetary gains.

15.  The defendant is prepared to compensate the victim for their loss.

Sentencing considerations

16.  As counsel correctly pointed out, the starting point for burglary of non-domestic premises is usually 2 ½ years’ imprisonment.

17.  Even though the defendant may not have planned in advance to commit this offence, I am not satisfied that his conduct was that of an “opportunistic burglar, akin to a sneak thief who walks into an open office to steal whatever he can find” (see paragraph 9 of the judgment in HKSAR v Sim Ka Wing CACC 450/2000.)

18.  According to the defendant’s admission upon his arrest and mitigation advanced on his behalf, the defendant went to the meter room to take away the routers as the noises emitted by them had disturbed his sleep.

19.  Although his stealing may not have been premeditated, the defendant went purposefully to the meter room looking for the routers, and he removed them so that they would no longer disturb his sleep.

20.  He was not making use of the opportunity that the unclosed Market entrance and the unlocked meter room door presented to him to go inside to steal whatever he might find there.  This was not an opportunistic burglary.  The starting point will not be lowered on this account.

21.  According to the photos of the scene, the meter room appears to be located away from the business section of the Market.  It can be considered to be situated in the common area of the Market.  I am asked to consider lowering the starting point on account of the theft having taken place in such an area.

22.  I agree with Mr Davies’s submission that in Suen Chi Wai, the Court’s rationale for lowering the starting point was grounded in the observation that confrontation of an intruder in the common areas of any building is unlikely to cause as much alarm or potential danger as confronting one in one’s own home in the case of a residential building or one’s own shop or office in the case of a commercial building.

23.  In our case, the burglary took place close to midnight, after the Market had closed for business.  The chances of an intruding burglar causing fright or alarm to the users or occupants there would have been minimal even if the business section had been the target, let alone the common areas.  In the circumstances of our case, I see no justification in lowering the starting point simply because the theft took place in the common area.

24.  A starting point of 30 months’ imprisonment will be adopted.  The defendant will get a one-third discount for his guilty plea.  The sentence after such a discount is 20 months’ imprisonment.

25.  The defendant is willing to pay and the prosecution is prepared to accept HK$1,400 as compensation.  I hereby make a compensation order under section 73 of the Criminal Procedure Ordinance, Cap 221 for the defendant to pay HK$1,400 to ETG Holdings Limited.  This amount is to be paid out of the defendant’s prisoner’s property.

26.  Whilst not wanting to give the impression that the defendant can buy his way out of his trouble with the law, his willingness to compensate the victim, which can be considered as an indication of remorse, should be encouraged and will be reflected in a further 1 month’s reduction in sentence, resulting in a final sentence of 19 months’ imprisonment.