HKSAR v. HOSSAIN MD. IQRAM AND OTHERS

DCCC 523/2022

[2023] HKDC 631

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 523 OF 2022

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REASONS FOR SENTENCE

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D1 pleaded guilty to 2 charges of "Burglary" (Charges 1 and 2). D2 also pleaded guilty to 2 charges of "Burglary" (Charges 3 and 4). D3 pleaded guilty to 1 charge of "Burglary" (Charge 5). The burgled premises were a mobile phone retail shop in Sham Shui Po.

Summary of Facts

Shop vandalism

2.  China Mobile had a retail branch situated at Shop No.1, Ground Floor, Kam Wah Mansion, Nos. 226-242 Cheung Sha Wan Road, Sham Shui Po ("the Shop").

3.  About 5:45 p.m. on 4 October 2019, Branch Manager Mr. Lee locked the roller shutter of the Shop and activated the security alarm.

4.  CCTV footage of the Shop shows that about 9:36 p.m. on 4 October 2019, a group of vandals (dressed in black and masked) broke into the Shop using sledge hammers and stick-like objects.  Some carried umbrellas to prevent detection of their identities.  The vandals crushed the display cabinet facing the street and yanked open the roller shutter with great force.  They then went into the Shop and further damaged its interior as well as the merchandise inside.

The burglaries

5.  From about 11:00 p.m. to midnight that evening, numerous people (clearly distinguishable from the vandals based on the way they dressed) walked in and out of the Shop as trespassers taking away merchandise from the Shop.  CCTV footage captured their stealing acts.

6.  D1 (who wore no mask) was seen entering the Shop at 11:08 p.m. and leaving the Shop at 11:11 p.m. holding item(s) he picked up in the Shop in his hand (Charge 1).  He did the same between 12:02 a.m. and 12:05 a.m. on 5 October 2019 (Charge 2).

7.  Between 12:01 a.m. and 12:06 a.m. on the same day, D2 (who wore no mask) took a white box (later confirmed to be an iPad) from the Shop and left (Charge 3).

8.  Between 12:01 a.m. and 12:07 a.m. on the same day, D3 (who wore no mask) went into the Store twice.  On 2 separate occasions, he tried but failed to snatch a box from someone taking merchandise away from the Shop.  At the end, D3 was seen holding boxes in his hands as he left the Shop (Charge 5).

Arrest and admissions

9.  D1 was arrested at Fuk Wing Street, Sham Shui Po for burglary on 14 October 2019.

10.  D2 was arrested at his home for burglary on 5 December 2019.  In his video recorded interview, he admitted, inter alia, that he went into the Shop with 2 casual friends in the evening on 4 October 2019.  One of his friends picked up an iPad from the floor.  He gave it to D2 and asked D2 to look after it.  D2 held the iPad for a few minutes and left the Shop.  His 2 friends later came out of the Shop holding a few Samsung mobile phones.  D2 gave the iPad back to one of his friends outside the Shop.  The other friend asked D2 where the phones could be sold (Charge 3).

11.  D2 further admitted that he returned to the Shop around 1:00 a.m. to 2:00 a.m. and bumped into the same 2 friends again.  In the Shop, his 2 friends found a plastic bag containing 5 boxes of earphones and they passed it to D2.  One of them asked D2 to go out first.  D2 waited outside the Shop for 6 to 7 minutes.  When his friends came out, D2 saw one of them holding a water bottle with a packaging box.  D2 then returned the bag of earphones to his friends (Charge 4).

12.  When shown the CCTV footage of the Shop (from 12:01 a.m. to 12:06 a.m. on 5 October 2019), D2 identified himself and his 2 friends.

13.  D3 was arrested for burglary at his home on 20 April 2020.  He handed over a mobile phone (E1) to the Police.  IMEI check confirmed that E1 was one of the phones stolen from the Shop.  In his video recorded interview, D3 admitted, inter alia, that he was present at the Shop around midnight on 5 October 2019. He took away a Samsung mobile phone and a pair of earphones (Charge 5).  When shown the CCTV footage of the Shop (from 12:02 a.m. to 12:07 a.m. on 5 October 2019), D3 identified himself.

Mitigation

D1

14.  He is 32 and has 1 conviction of "A.O.A.B.H." for which he was sentenced to 2 months' imprisonment in August 2021. Prosecuting counsel Ms. Wong confirmed that D1 had a clear record prior to the present case. His counsel Mr. McCoy informed me that D1 came to Hong Kong from Bangladesh in 2001. He is married with 2 children (aged 13 and 8). He was a deliveryman earning $30,000 per month.

15.  In mitigation, Mr. McCoy submitted that the offences in the present case are akin to "opportunistic" or "walk-in" burglaries. D1's presence at the Shop took place some 90 minutes after breaking in by the vandals. He was just a passer-by who became greedy and lost his judgement. D1 had no planning in advance to steal from the Shop and he did not know the others who went inside. Mr. McCoy asked for a starting point lower than the usual 2.5 years' imprisonment.

D2

16.  He is 20 and has 1 conviction of "Theft" for which he was given a Probation Order for 12 months in March 2021. Similar to D1, D2 had a clear record prior to the present case. His counsel Mr. Yau informed me that D2 has a son (aged 21 months). D2 is educated up to Form 4 and works as a deliveryman earning about $18,000 per month. The mother of D2's son does not reside with them. D2 looks after his son and is assisted by D2's mother.

17.  In mitigation, Mr. Yau also submitted that the offences in the present case are akin to "opportunistic" burglaries. He explained that D2 entered the Shop out of curiosity. D2 merely helped his friends holding certain items. He passed those items back to his friends after a few minutes and received no benefits whatsoever. Mr. Yau further submitted that situations similar to the present case do not occur every day; D2 was influenced by the crowd around him.

D3

18.  He is 20 and has a clear record. His counsel Ms. Wong informed me that D3 resides with his mother and elder sister. In mitigation, Ms. Wong submitted that D3 has a low IQ and suffers from learning difficulties. He studied only up to Form 1. Regarding the nature and seriousness of the present burglary offences, Ms. Wong made submissions similar to D1's and D2's counsel.

19.  Ms. Wong explained that D3 was on his way home when he passed by the Shop. He walked into the Shop unprepared (without mask or tools and not knowing anyone around him). He remained in the Shop for about 6 minutes. He took some items for his own use rather than for resale. He turned over the mobile phone to the Police; whereas the earphones were thrown away since they were broken.

Sentence

20.  For the purpose of sentencing, I accept that the vandals who broke into the Shop and the subsequent burglars were separate groups of people with different intentions. In other words, I accept that D1 to D3 were passers-by who became greedy when they saw the opportunities to help themselves to electronic products in the Shop. I, however, would not treat their criminal acts as "opportunistic burglaries".

21.  When the Shop was wide open and not guarded, it was perhaps tempting to just go inside to pick up and take home a few items, especially when the surrounding crowd was doing so. But in a civilized society, its members are expected to behave themselves and exercise self-restraint; or otherwise they would be no different from wild animals. Although their stealing acts were not pre-meditated and the culprits were probably strangers to each other, such mob-like conduct of "looting a burning house[1]" must be publicly condemned and punished to the fullest extent.

22.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I see no reason why I should adopt a lower starting point as suggested by all 3 defence counsel. In principle, I consider 2.5 years' imprisonment to be the appropriate starting point for all 5 charges in the present case.

D1

23.  I treat him as a fresh offender. For Charges 1 and 2, I adopt 2.5 years' imprisonment as the starting point for each charge. With the timely guilty plea, the sentence is reduced to 20 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 20 months' imprisonment for each charge.

24.  Charges 1 and 2 took place about 1 hour apart. Initially, D1 was perhaps a passer-by with clouded judgement. But when he returned to the Shop for a 2^nd bite an hour later, he clearly came with a purpose, knowing what he wanted. I consider a global starting point of 33 months' imprisonment appropriate for both charges. With the timely guilty pleas, the overall sentence becomes 22 months. To achieve this, I order 2 months in Charge 2 to run consecutive to the sentence for Charge 1.

D2

25.  I also treat him as a fresh offender. Comments contained in his pre-sentencing report are noted. The assessing officer observed that D2 has shown some sense of remorse for and gained reflection into his wrongdoing. He finds D2 mentally and physically fit for Rehabilitation Centre, Detention Centre and Training Centre; and considers him suitable for detention in a Detention Centre.

26.  As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook D2's need for rehabilitation. I have reminded myself that correctional institutions such as Rehabilitation Centres, Detention Centres and Training Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.

27.  After careful consideration, I have decided to make a Detention Centre Order, which will be the sentence for Charges 3 and 4. I believe a Detention Centre Order will benefit D2 most in terms of disciplinary training, reformation and punishment.

D3

28.  He is a fresh offender. Comments contained in his pre-sentencing report are noted. The assessing officer observed that D3 has verbalized his sense of remorse and acknowledged his greediness, which attributed to his stealing from the Shop. He finds D3 mentally and physically fit for Rehabilitation Centre, Detention Centre and Training Centre; and considers him more suitable for detention in a Detention Centre.

29.  D3 may lack the intellectual ability for academic pursuits, but he has done some preparation for entry into the construction field. He holds a valid Construction Workers Registration Card and a valid Construction Industry Safety Training Certificate. He has also told the assessing officer his rehabilitation plan ‒ to become a construction worker.

30.  For the same reasons I have given regarding D2, I have decided to make a Detention Centre Order, which will be the sentence for Charge 5.