HKSAR v. PAVEL

DCCC 115/2023

[2023] HKDC 1588

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 115 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Background

1.  The defendant pleaded guilty to one charge, being ‘burglary’ of domestic premises, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Material admitted facts

2.  At the material time, Chinese male/Mr Chung (‘PW2’)  had rented out his ancestor house at No. 16 Yick Yuen Tsuen, Yick Yuen Road, Tuen Mun, New Territories (‘the House’).

3.  The House was divided into four flats (Flat A-D)  and each flat was sub-divided into three rooms. In respect of Flat D, one of the rooms (Room 3)  was rented to Bangladeshi female/Miss SONYA (‘PW1’)  and her boyfriend while the other two rooms (Room 1 and Room 2)  were rented to the defendant and his family members.

4.  Occupants of Flat D had to share a toilet and a kitchen. Occupants of each room had keys to their own room. There was a patio outside Room 3 of Flat D (‘the Patio’)  for ventilation. The only access to the Patio was through the window of the kitchen. However, before renting out Flat D, PW2 had already blocked that window by fixing it with planks.

The incident

5.  On 8 September 2022 at around 0800 hours, PW1’s boyfriend left Room 3. Later at around 1000 hours, PW1 also left Room 3 after locking the door and checking that everything was fine.

6.  At around 1330 hours on the same day, PW1 returned to Room 3 and unlocked the door. When the door was opened by a few inches, someone behind the door closed the door by pushing it forcefully. PW1 asked the person in the room who he or she was but nobody answered. PW1 could not open the door even with the help of a female neighbor. Hence, she called her boyfriend and eventually, the police was called.

7.  At around 1422 hours, police officers including PC 6846 (‘PW3’)  and PC 13170 (‘PW4’)  arrived. The door of Room 3 was found to be left ajar but it could not be fully opened. There was something behind the door which prevented the door from being opened. No sign of prizing open of the door lock was found.

8.  At around 1425 hours, the police succeeded in gaining entry to Room 3. In the room, nobody was found. There were signs of ransacking. There was a cabinet behind the door which blocked the entry. The ventilation window of Room 3 was found to be damaged and opened. PW3 looked out of the window and saw the defendant hiding in the Patio. The defendant then climbed through the ventilation window and returned to Room 3.

9.  With the consent of PW2, the police removed the planks of the kitchen window to gain entry to the Patio. The Patio was about 2m × 1m large. The distance between the ground and the roof of the Patio was about 2.1m. The roof was found to be intact and covered by metal railings.

10.  At 1445 hours, upon search of the Patio by PW4, a black bag (Exh 1)  and two bunches of keys (Exh 14 and Exh 79)  were found on the crossbeam. Inside the black bag (Exh 1), the followings were found:

(i)  6 mobile phones (Exh 2-7);

(ii)  1 monitor (Exh 8);

(iii)  4 watches (Exh 9-12);

(iv)  1 lighter (Exh 13);

(v)  1 laptop computer (Exh 15);

(vi)  a black bag (Exh 16);

(vii)  7 necklaces (Exh 17-23);

(viii)  a red string (Exh 24);

(ix)  11 wrist chains (Exh 25-35);

(x)  8 rings (Exh 36-43);

(xi)  1 eyebrow pencil (Exh 44);

(xii)  2 bangles (Exh 45);

(xiii)  9 pendants (Exh 46-54);

(xiv)  27 ear rings (Exh 55-70); and

(xv)  8 coins (Exh 71-78).

11.  It was confirmed that Exh 14 and Exh 16-79 belonged to PW1 while Exh 1-13 and Exh 15 belonged to PW1’s boyfriend. The items were properly placed in Room 3 of Flat D on the night before the incident. The total value of the property was HK$25,000.

Arrest and caution

12.  At 1504 hours, PW3 arrested the defendant for burglary.

13.  In the subsequent video-recorded interview, the defendant said, inter alia, the following under caution:

a. The defendant had been living at the material flat with his wife and daughters for four years;

b. The defendant knew PW1’s boyfriend since the day the defendant came to Hong Kong. PW1 and her boyfriend had invited the defendant to their room before many times; and

c. On 8 September 2022 at around 1400 hours, the defendant went to the Patio to turn off the water tap outside the kitchen as he was asked by the landlord to change the water tap of the toilet.

Further enquiry

14.  According to PW2, in late August 2022, he asked the defendant to help him repair the tap of the toilet of Flat C. However, to change the tap, one only needs to cut the water supply in the kitchen of Flat C. There is no need to enter the Patio. PW2 had never asked the defendant to enter the Patio.

The offence

15.  At the material time, the defendant, having entered as a trespasser part of a building, namely Room 3, Flat D of the House, stole therein 2 bags, 6 mobile phones, one monitor, 4 watches, one lighter, 2 bunches of keys, one laptop computer, 7 necklaces, a string, 11 wrist chains, 8 rings, one eyebrow pencil, 2 bangles, 9 pendants, 27 ear rings and 8 coins.

The defendant’s personal background, criminal records and mitigation

16.  The defendant has a clear record. He is aged 30, with a cohabitee and 2 young daughters living under the same roof. He was born in Bangladesh and is a “Form 8 recognisance holder”.  

17.  In mitigation, Mr Delaney has prepared a detailed mitigation and submitted a few salient points. Firstly, the defendant’s timely guilty plea. Secondly, the defendant is an opportunistic burglar: HKSAR v Sim Ka Wing CACC 450/2000. Thirdly, there is no other aggravating features in this case. Fourthly, the value of the property is PW1’s bare assertion. 

Sentencing consideration and discussion

18.  In the light of the mitigation, I have the benefit of reading the photo album covering the access to the room and the brand names and outlook of the stolen property. It seems to me that trespasser has to make some efforts by opening the small ventilation window before gaining entry into the room. Regarding the value of the property, it seems that PW1’s estimation of value (based on purchase price)  is supported by objective factors.  

19.  The conventional starting point for burglary of domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 3 years’ imprisonment (R v Chan Yui Man CACC 36/1988).

20.  I do not accept that the defendant entered into the subject room with a view to seeing if his daughter’s missing property was there. The defendant could have asked PW1 or her boyfriend for this, not making efforts to go through the narrow gap to the Patio and climb into the room without their consent, hence stealing at the spur of the moment can hardly be accepted. The defendant is premeditated. Secondly, the value of the stolen property was substantial, judging from the nature of those items such as 6 mobile phones, one laptop computer, one monitor, 4 watches (I also inspected them), I could not agree that the estimated value of the property is PW1’s bare assertions. It is supported by the objective features of those items. Fortunately, all items were recovered upon the victim’s return.

21.  Nevertheless, case law suggests that the usual starting point has “premeditation or well-planned burglary” absorbed into it.  

22.  I now turn to “opportunistic burglar”.  In Sim Ka Wing, the Court of Appeal propounded that:

“The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. 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 lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, 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. In our opinion, the degree of planning and premeditation in this case was more (though not much more)  than normal, and justified a modest increase in the starting-point.”

23.  Also on the peculiar facts of that case, including the defendant broke into his former employer’s shop out of unfair treatment before (as suggested in his psychiatric report obtained for sentencing), the Court of Appeal imposed 27 months’ imprisonment. Each case depends on its own facts and I will pay heed to the facts of this case, i.e. no sign of breaking in. I am minded to reduce from the starting point for 6 months to reflect the said fact (36–6=30).

24.  However, there is also an aggravating factor arising from the defendant’s Form 8 status, which should be reflected in the sentence. 

25.  In HKSAR v Sandagdorj & Another [2014] 1 HKC 206, Macrae J as he then was said that the commission of offences by refugees or torture claimants which has the effect of tarnishing this City’s reputation for order and security is a factor which is capable of aggravating the sentence for the crime (see also: HKSAR v Raman Kumar para 20).

26.  In a more recent decision, HKSAR v Butt Muhammad Gulzar[2020] 3 HKLRD 805, reasons for judgment handed down on 17 July 2020, the Court of Appeal at paragraph 32, when endorsing the principle that the amount of enhancement should be left to the sentencer’s discretion, emphasised that the enhancement must be substantial, otherwise it would have no deterrent value and that it generally should not be less than 6 months for serious offences. 

27.  The Court of Appeal then, in the same paragraph 32 of the judgment recited its early observations in another case, HKSAR v Singh Gursevak [2019] 2 HKLRD 274. The amount of the enhancement would reflect the court’s assessments of the seriousness of offence and the severity of the adverse impact that the offence had on Hong Kong. Making the assessment would entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation. The more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. It should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime.

28.  In short, the sentence has to be increased for 3 months for committing offence while holding recognizance as an asylum seeker/torture claimant: HKSAR v Junaid Ahmed [2018] HKCA 159 (36-6+3=33). This is, in my views, reasonable and proportional to the facts and severity of the crime. 

29.  1/3 discount be given for his guilty plea and that arrives at 22 months’ imprisonment for the offence.