HKSAR v. AZEEM NASIR

DCCC 1133/2023

[2024] HKDC 2040

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1133 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 6 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 3 and 5 to 7), and one charge of attempted theft, contrary to section 9 of the Theft Ordinance and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 4).

2.  In gist, between 8 January and 28 April 2023, the defendant broke or damaged a window of 6 different vehicles parked in Tuen Mun area and stole property from 5 of the vehicles.  On another occasion (ie Charge 6), he stole a shirt at the open area in front of the house of its owner.

3.  Full details of the offences are set out in the summary of facts admitted by the defendant and the following is a brief summary of each offence.

Charge 1

4.  In the early hours on 8 January 2023, the defendant broke the window of the front passenger seat of a private car that was parked near a lamppost on Wo Ping San Tsuen Lane, Tuen Mun and stole from it one pair of calipers, one pair of scissors and an electroprobe.  The total value of the stolen property was about HK$300 and cost of repair was about HK$750.

Charge 2

5.  On 14 March 2023, the defendant broke the window of the left rear passenger seat of a private car that was parked on Tuen Hing Road, Tuen Mun and stole from it one rucksack, 3 HKSAR passports, two birth certificates, one tablet computer, one bank passbook, one chop, cash of ¥1,200 Renminbi and cash of HK$5,500.  The cost of repair was HK$5,000.

Charges 3 & 4

6.  On or about 14 March 2023, the defendant broke the window of the driver seat of a taxi that was parked at the parking area in Tsing Sin Street, Tuen Mun and stole from it 2 mobile phones and cash of around HK$200.

7.  Around the same time, the defendant also broke the window of the driver seat of another taxi that was parked at the same parking area but there was nothing of value in the taxi.  The defendant, therefore, did not steal anything on this occasion.

Charge 5

8.  In the small hours on 6 April 2023, the defendant damaged the window of the front passenger seat of a light goods vehicle parked at the parking place outside Hong King Garden, Tuen Mun and stole from it two red packets and cash of around $240.  The cost of repair was about HK$5,000.

Charge 6

9.  On 26 April 2023, the defendant stole a long sleeves shirt at an open area in front of a house situated at No 342, Chung Uk Tsuen, Tuen Mun.

Charge 7

10.  On 28 April 2023, the defendant broke the window of the front passenger seat of an urban taxi which was parked outside No 12 Castle Peak Road, Tuen Mun and stole from it cash of HK$83,000, a tablet computer and four mobile phones.  The total value of the stolen property was HK$106,050 and the cost of repair was HK$500.

11.  The defendant was arrested on 14 July 2023 and under caution he admitted to have committed the offences.

Mitigation

12.  The defendant is now 26 years old.  He has 8 previous criminal conviction 2 of which related to the offences of theft and attempted theft.  He received education up to the level of high school in Pakistan.

13.  Mr Laskey, counsel representing the defendant, submits that the thefts were opportunistic and un-premeditated.  The defendant committed the offences out of financial pressure. He also provided Reasons for Sentence in other District Court cases in respect of the offence of theft from vehicle for reference purpose.

Sentence

14.  There are no guidelines for theft from vehicle.  The property stolen in Charges 2, 3 and 7 include substantial amount of cash, personal identity documents, computer tablets and mobile phones, posing considerable risks of exposing personal data and confidential information of the victims.  All 6 offences of theft from a vehicle involved damage to the windows, resulting in inconvenience and repair costs.

15.  For Charges 2, 3 and 7, I adopt a starting point of 18 months’ imprisonment. The starting point for Charges 1, 4 and 5 is 15 months’ imprisonment.  As for Charge 6, it is not a case of theft from vehicle and I am satisfied that a starting point of 3 months’ imprisonment is appropriate.

16.  Having regard to the losses suffered by the various owners of the vehicles, the inconvenience caused to them, the multiplicity of offences which occurred over a period of about 4 months, and in all the circumstances of the case, the appropriate overall starting point should be 28 months’ imprisonment.

17.  A starting point may be increased where the defendant is a persistent offender (see HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at 833 and HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630).  There is such an aggravating feature in this case.  The defendant was convicted of the offence of attempted theft in 2018.  He was convicted of theft in late 2021 and was, on that occasion, sentenced to a term of 5 months’ imprisonment.  He was obviously not deterred by the previous sentence and committed the instant offences not long after his release from the prison.  In the circumstance, I enhance the starting point by a further 2 months to 30 months’ imprisonment.

18.  The defendant should be given full one-third discount of sentence for his timely plea and the sentence is reduced to 20 months’ imprisonment.

19.  Mr Laskey submitted that the defendant should be entitled to a further reduction of sentence to reflect his co-operation by voluntarily confessing to some of the charges and he cited the case of HKSAR v Chu Kwok Chu [2013] 6 HKC 357 at paragraph 21 in support of his contention.  However, the Court of Appeal further said, at paragraphs 25 and 27 of the judgment, that it is entirely a matter of discretion for the sentencing judge, as co-operation with police after arrest should be subsumed within the one-third discount.  The Court of Appeal held the same stance in the more recent case of HKSAR v Nguyen Van Nam [2016] 5 HKLRD 1 when it revised the practice of one-third discount for guilty pleas (see paragraphs 38 to 41).

20.  Other than the defendant’s guilty plea, there is no other valid mitigating factor in this case.

21.  The defendant is convicted and sentenced as follow:

Charges 1, 4 and 5: Starting point of 15 months and reduced to 10 months’ imprisonment;

Charges 2, 3 and 7: Starting point of 18 months and reduced to 12 months’ imprisonment;

Charge 6: Starting point of 3 months reduced to 2 months’ imprisonment.

The sentences for Charges 2, 3 and 4 are to be served concurrently and that 5 months of the concurrent sentence in respect of Charges 2, 3 and 4 are to be served consecutively to the sentence for Charge 1. It is further ordered the sentences for Charges 5, 6 and 7 are to be served concurrently and 5 months of the concurrent sentence in respect of Charges 5, 6 and 7 are to be served consecutively to the sentences for Charges 1 to 4.

Totality

22.  The total sentence for the 7 offences is one of 20 months’ imprisonment.