HKSAR v. ILYAS MUHAMMAD AND ANOTHER

DCCC 135/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 135 OF 2017

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to attempted burglary of domestic premises in Sham Shui Po, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2]. D2 stands convicted after trial of the same charge.

2.  Full particulars of the offence are set out in the summary of facts admitted by D1 on 2 August 2017 and in my verdict delivered earlier this afternoon.  In summary at about 7:30 p.m. on 27 December last year Mr Ho, the owner of the flat, was at home when he heard the sound of metal banging coming from outside the kitchen. 

3.  Mr Ho checked the kitchen and saw the body of a person moving outside the kitchen window and something like a tube moving.  As the banging sound continued Mr Ho saw the kitchen window moving.  Mr Ho therefore called the police, who arrived a few minutes later. 

4.  On reaching the 8th floor PC 11620 saw D1 and D2.  D1 was holding a crowbar trying to prise open the kitchen window of Mr Ho’s flat while D2 was standing close to D1 keeping watch.

5.  When PC 11620 went forward and shouted police, D2 looked at D1 and shouted whereupon D1 dropped the crowbar and both D1 and D2 fled towards the rear staircase.  The police officers intercepted and arrested D1 and D2.  D1 was found in possession of a receipt for the crowbar, a torch, two screwdrivers and a pair of scissors.

6.  In passing sentence, I have carefully considered everything said by Ms Sim on behalf of D1 and by Mr Polson on behalf of D2. 

Starting point

7.  The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

Aggravating features

8.  The commission of offences by two or more people is an aggravating feature[3].  I enhance the starting point by 3 monthsto 3 years and 3 months’ imprisonment.    

9.  Where the offender has previous convictions, particularly burglary, this is also an aggravating feature.  D1 has appeared in court on seven occasions since 2011, accumulating seven convictions, four of which are for offences of dishonesty.  D1 last appeared in court on 27 July 2015 when he was sentenced to 2 years’ imprisonment for burglary[4].

10.  Mr McNamara informs the court D1 was released from that sentence on 27 September 2016.  Just under three months later D1 was again committing burglary having equipped himself with a crowbar[5]. I am satisfied D1 is properly to be regarded as a persistent offender.  

11.  Further, the commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation[6].  I am satisfied burglary of domestic premises is an offence which affects Hong Kong’s reputation for order and security. 

12.  D1 is a form 8 holder[7]. In the circumstances I am satisfied that the starting point for D1 is to be further enhanced by 3 months to 3 years and 6 months’ imprisonment to take into account his repeated commission of burglary.  

Sentence

D1

Discount for pleading guilty

13.  The new sentencing guidelines in HKSAR v Ngo Van Nam apply[8].  I am satisfied you are not entitled to the full one-third discount having pleaded guilty only on the second day of trial.  Although on the first day of trial you applied for an adjournment to view the video recorded interview, the plea having been entered before the trial started, I am satisfied you are entitled to a discount of 20%. 

14.  I reduce the starting point by 9 months, which is just over 21% discount.   D1 is convicted and sentenced to 2 years and 9 months’ imprisonment.

D2

15.  I find no mitigating features to reduce the enhanced starting point of 3 years and 3 months’ imprisonment.  D2 is convicted and sentenced to 3 years and 3 months’ imprisonment.