HKSAR v. MUHAMMAD AKBAR

DCCC 180/2021

[2021] HKDC 1643

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 180 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is a Pakistan national.  He pleaded guilty before me to three charges of burglary (Charges 1, 2 and 4); one charge of possession of a dangerous drug (Charge 3); and three charges of handling stolen goods (Charges 5 to 7).

2.  The details of the offences are set out in the facts admitted by the defendant on 6 December 2021.

FACTS

Charge 1

3.  This burglary took place in a restaurant situated at the Ground Floor No 47B Graham Street, Central.  On 2 April 2020 the staff member of the restaurant, checked the restaurant and locked all doors before leaving at about 2230 hours.  On the next day (3 April 2020)  when she returned to the restaurant, she discovered that the lock at the bottom of the main door had been prized.  Upon checking, she found cash of $1,080, two tablet computers, one iPad and one mobile phone missing.  A white surgical mask was found on the floor of the kitchen area, the presence of which was not noticed by the staff member before she left the restaurant on the previous night.  Case was reported.  Forensic examination revealed that the defendant’s DNA was found on the mask.

Charges 2 and 3

4.  This burglary took place in a building known as Tung Wah Mansion under construction situated at Nos 199-203 Hennessy Road, Wan Chai.

5.  The structure of the building was intact but a part of the internal structure of the building had been demolished to prepare for the renovation.  The building had a staff gate on Fleming Road for the passage of workers and the vehicle gate on Lockhart Road for the passage of construction vehicles.  There was a one-foot gap under the vehicle gate and the ground.  Both gates were closed and locked when workers went off work.  A wire mesh flap was installed at the side wall of the building.  The wire mesh flap was generally left unlocked.

6.  On 7 April 2020 at about 2342 hours, when a party of police officers were conducting an anti-burglary operation, they saw the defendant holding a suitcase, acting furtively near the building together with an unknown man.  About half an hour later at 0014 hours on the 8 April 2020 one of the police officers saw the defendant opening the wire mesh flap and climbing into the building alone.  The defendant was in the building for more than five hours.  Initially one of the police officers checked under the gap of the vehicle gate and found nothing placed there.  At about 0525 hours, this police officer heard some noise from the building, he then checked under the vehicle gate and found a trolley, a rucksack and a bag were placed near the vehicle gate.  At 0536 hours another police officer saw the defendant opening the wire mesh flap and climbing out of the building.  The first mentioned police officer then intercepted the defendant when he was leaving the scene with the suitcase.  Upon search, a pair of gloves were found in a waist bag that the defendant was wearing.  The suitcase was also searched and was found empty.  The defendant was arrested.

7.  At the material time, the defendant entered as a trespasser into part of the building know as Tung Wah Mansion under construction, with intent to steal therein. (Charge 2)

8.  The defendant was taken back to Wan Chai police station.  Upon search on the defendant’s body, 0.48 gramme of a packet of crystalline solid containing substance commonly known as ICE was found in his underpants. (Charge 3)

Charge 4

9.  This burglary took place in a café situated at Ground Floor, Nos 15-17 Saigon Street, Yau Ma Tei.

10.  On 27 June 2020, the proprietor checked the café and locked all windows and doors before leaving at 2300 hours.  Two days later when he returned to the café, he saw signs of ransacking.  Cash of around $950, a CCTV screen and a monitor were found missing.  Case was reported.

11.  There is CCTV footage inside the café that shows the defendant appearing at the back alley of Saigon Street and attempting to enter the café via the back door.  The defendant then broke the wooden gate and entered the café via the metal sliding door and started ransacking at about 0610 hours on 29 June 2020.  After ransacking the cashier booth, the defendant left the café via the back door with his right hand holding the stolen items.  Forensic examination revealed that two palmprints of the defendant were found at the edge of the metal sliding door.

Charges 5-7

12.  In mid June 2019 Mr Wong Shu Wai Danny checked the premises where he resided and locked all windows and doors before leaving for work at about 0600 hours.  On the same day at about 1800 hours, his neighbour told him that his premises was burgled. When he returned home, he found that the main door of the premises was prized open with signs of ransacking therein.  A backpack containing his HKSAR passport with leather cover (“Stolen Property 1”)  and a laptop were found missing from the premises.  He did not report the loss of his property.

13.  On 19 May 2020, Mr Tang Yijia checked the premises where he resided, with all doors and windows locked before leaving for work at about 0800 hours.  On the same day at about 1130 hours, a Ms Fung discovered the door of Mr Tang’s premises had been prized open.  A suitcase containing Mr Tang’s personal document including a Mainland Technical Training Certificate printed with Mr Tang’s name (“Stolen Property 2”)  and five pairs of sports shoes were found missing. 

14.  On 26 June 2020, Mr Thomas Jake Samuel and his girlfriend checked the premises that they were residing in with all windows and doors secured before leaving at about 1500 hours.  Two days later on 28 June 2020, upon returning to the premises, they found signs of ransacking therein.  One of the windows was opened.  Both of Mr Thomas’s renewed and expired British passports (respectively “Stolen Property 3” and “Stolen Property 4”), a projector (“Stolen Property 5”), two notebook computers, four cameras, four camera lens and a hard drive were found missing.

15.  Police intelligence unveiled the identity of the defendant.  He was arrested at his residence on the 30 July 2020.  During a house search, at the defendant’s residence Stolen Property 1-5 were recovered.

16.  At the video-recorded interviews conducted on 31 July 2020, the defendant, under caution, claimed that a man named “Mac Mac” passed Stolen Property 1-5 to him for his retention.

PERSONAL AND FAMILY BACKGROUND

17.  The antecedent statement of the defendant shows that he was born in Pakistan and is now 42 years old.  In her written mitigation, Ms Herbert supplemented that the defendant is an asylum seeker and is unemployed.  He relies on ISS to sustain his living expenses.  He is single and has no family members in Hong Kong.  His mother passed away 14 years ago.  His father and brother live in Pakistan.  His father is around 67 years old and has a cardiac problem.  The defendant’s brother is married and has his own family and therefore struggles to look after the father without any support.

CRIMINAL RECORD

18.  The defendant has appeared in court on 7 occasions between 2003 and 2021 amassing a total of 11 convictions including convictions for burglary, possession of dangerous drug and other dishonesty related offences.

19.  The defendant has 2 convictions for burglary in 2018 for which he was sentenced to a total of 26 months’ imprisonment.

20.  The defendant last appeared in court on 8 January this year when he was sentenced to 3 months’ imprisonment for one count of possession of a dangerous drug.  Before the commission of the present offences, he had 3 dangerous drug related convictions respectively in 2007, 2015 and 2016.

21.  The defendant has 2 convictions for using and possession of a false instrument in 2013 and was sentenced to a total of 12 months.

MITIGATION

22.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Herbert together with the letter of mitigation written by the defendant.

23.  In relation to the burglary offences, Ms Herbert points out that all 3 burglary offences were committed in non-domestic premises.  There was no evidence of careful planning by the defendant.  There was no evidence of forced entry or damage done to property over and above that expected in the usual course of a burglary.  The value of the stolen goods albeit not minimal was not particularly large.  In relation to Charge 2, nothing was taken from the building under construction. Ms Herbert submits that for non-domestic premises burglary the normal starting point is 30 months’ imprisonment.

24.  In relation to the dangerous drug offence, Ms Herbert points out that the quantity of the drug involved is relatively small and is for the defendant’s own consumption.  There is no real risk of latent re-distribution.

25.  In relation to the offences of handling stolen goods, Ms Herbert points out that the value of goods is not that high and there is no evidence of a direct link between the defendant and the primary offences of burglary.  There is no evidence of any profit made by the defendant.  All the items were found in his own residence.  The defendant made a full and frank confession to the police when he was arrested, saying that he was keeping the goods for a man named “Mac Mac”.  Ms Herbert submits that the normal starting point for handling stolen goods is between 2 to 4 years’ imprisonment.

26.  Ms Herbert further stresses that the defendant’s father is now in very poor health and suffering from additional stress in the knowledge that the defendant is in custody and likely to remain in custody for some time yet.  This is causing immense concern to the defendant, particularly as maintaining contact in custody has its own challenges.

REASONS FOR SENTENCE

27.  In sentencing the defendant, I have borne in mind the facts of this case, the background of the defendant and all the matters urged on the defendant’s behalf by Ms Herbert.  I have also been referred to authorities and cases dealing with sentencing similar offences.

28.  Despite the defendant’s admission to all these charges, it is clear from the nature and number of charges, the facts pertaining to each charge as well as the background of the defendant that the only viable sentencing option is imprisonment.  Ms Herbert has never suggested otherwise.  The only question to be determined is the length of the sentence for each charge, and the length of the overall term of imprisonment to be served by the defendant.

29.  I would first of all deal with the sentence to be imposed on each of the charges.

Burglary (Charges 1, 2 and 4)

30.  For Charges 1, 2 and 4, all 3 burglaries concerned non-domestic premises.  The correct starting point for burglary offences took place inside non-domestic premises where there were no aggravating or mitigating features is 30 months’ imprisonment (see The Queen v Wong Man [1993] 1 HKC 80, Attorney General v Lui Kam Chi [1993] 1 HKC 215). 

31.  In my view, there is no valid justification to depart from the normal sentencing tariff.  I adopt 30 months’ imprisonment as the starting point for each of Charges 1, 2 and 4.

32.  In HKSAR v Cheng Wai Kai CACC338 & 339/2007, the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances which would include:-

“(1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at substantial premises and involves substantial properties;

(4)  the offender is a professional burglar and not just an opportunist;

(5)  the offender has previous convictions, particularly previous conviction of similar nature, and

(6)  the offender commits multiple offences.”

33.  In this case, while the offences committed by the defendant cannot be said to be opportunistic, I accept that there is no evidence of careful planning for each of the offences committed by him.  Nor is there evidence that the defendant targeted at substantial premises and involved substantial property.  There is also no evidence of use of any heavy instrument or equipment.

34.  The agreed facts show that the lock at the bottom of the main door was prized in Charge 1 and the wooden gate was broken in Charge 4 to facilitate stealing of the relevant items inside.  But I accept that damage of this kind is not particularly serious and that it does not elevate the gravity of each offence in this case to a level above and beyond the gravity of a routine burglary offence.  For this reason, the starting point for each sentence will not be enhanced on this ground.  I also accept that value of the stolen goods in each charge does not call for an increase in sentence.

35.  On the other hand, as noted in the above, the defendant has 2 previous convictions for burglary in 2018 and was sentenced to a total of 26 months’ imprisonment. Although it is not known exactly when he was discharged from prison for that sentence, it clearly shows that the defendant reoffended with burglary offending within just 2 years after he was sentenced for the previous burglary offences.  Besides, he also has convictions of other dishonesty-related offences namely using and possession of a false instrument in 2013 for which he was sentenced to a total of 12 months’ imprisonment.  Previous sentences have clearly had no deterrent effect on the defendant.

36.  I am satisfied that the starting points are to be increased by 3 months to 33 months’ imprisonment on the basis of his criminal record, particularly that from 2018.

37.  The defendant is a Form 8 recognizance holder.  As Ms Herbert rightly submitted, 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 for order and security.

38.  I am satisfied offences of burglary affect the community at large and have a significant impact on Hong Kong’s reputation for order and security.  By reason of the defendant’s Form 8 status I further enhance the starting points by 3 months to 36 months.

39.  It is clear that the only valid mitigating factor is the defendant’s guilty plea for which he would be given the usual one-third discount of the sentences. 

40.  I therefore sentence the defendant to serve a term of 24 months’ imprisonment for each of the Charges 1, 2 and 4.

Possession of a dangerous drug (Charge 3)

41.  Given the small quantity of ICE involved in the offence of possession of a dangerous drug, I accept that any latent risk of re-distribution is unlikely.  I adopt a starting point of 9 months’ imprisonment (see HKSAR v Wan Choi Fai HCMA 250/1998).

42.  The defendant has 3 previous drug related convictions, from 2007.  Noting the passage of time involved, I decide not to increase his sentence on the basis of his criminal record for this offence.

43.  Full credit should be given to the defendant for his timely plea.  After one-third discount, the defendant is sentenced to 6 months’ imprisonment for Charge 3.

Handling stolen goods (Charges 5-7)

44.  Charges 5-7 represent the proceeds of 3 domestic-premises burglaries that occurred between mid-June 2019 and 28 June 2020.  Some of the items stolen in those burglaries were recovered from the defendant’s residence upon his arrest on 30 July 2020. From the first domestic-premises burglary in mid-June 2019, the defendant received a HKSAR passport with a leather cover.  From the second domestic-premises burglary on 19 May 2020, the defendant received a Technical Training Certificate.  From the third domestic-premises burglary, the defendant received two British passports of the same victim, one renewed and one expired.

45.  In my view, Charges 5 to 7 should be dealt with together as far as sentencing is concerned.  It is because although the primary offences for each charge took place at different locations at different times, the defendant was found to have been handling the stolen items on the same day at the same time when the police officers raided his residence on 30 July 2020 and there is no evidence to suggest that the defendant received those stolen items on different dates.  I would therefore impose a global sentence for these 3 charges and order these 3 sentences to run concurrently.

46.  I note that in the case of R v Chan Wing Kwan and another CACC 121/1985, the Court of Appeal said “(a)n examination of a number of other cases of handling stolen goods shows that the normal bracket of sentence runs between 2 and 4 years.  Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled” (see paragraph 46 of the judgment).

47.  In R v Bernard Webbe & Others [2002] 1 Cr App R (S)  22, the English Court of Appeal identified 9 factors that might be regarded as aggravating the offence.

48.  The English Court of Appeal also identified factors that might mitigate the offence: (1)  the offence was a one-off offence committed by an otherwise honest defendant; (2)  little or no benefit to the defendant; and (3)  voluntary restitution to the victim.  Personal mitigating factors such as (1)  ready co-operation with the police, and (2)  timely plea should also be considered.

49.  The factors aggravating or mitigating the offence of handling stolen goods as identified in Bernard Webbe had been followed and applied by the Courts in Hong Kong (see HKSAR v Xiao Wei [2004] 1 HKC 520).

50.  In my view, 2 of the 9 aggravating factors identified in Bernard Webbe are present in the present case, namely; that the stolen goods were proceeds of 3 domestic-premises burglaries, and that the defendant committed these handling offences while on police bail for Charges 2 and 3.

51.  As to the other aggravating factors identified in the Bernard Webbe, I do not find them present in the present case.

52.  In the present case, bearing in mind that the aggravating factors were present as identified above, I adopt a starting point of 24 months’ imprisonment for each of Charges 5-7.

53.  It is clear that the only valid mitigating factor is the defendant’s guilty plea for which he would be given the usual one-third discount of the sentences. 

54.  I therefore sentence the defendant to serve a term of 16 months’ imprisonment for each of the Charges 5, 6 and 7 and order them to run concurrently.

Mitigating factors

55.  As far as the mitigating factors are concerned, the fact that the defendant has to go to prison with the consequences that there is difficulty for him to maintain contact with his very ill father cannot be regarded as mitigation.  Because of his previous convictions, it must be that he knew full well at the time when he committed these offences that he would be sentenced to prison if he would be convicted and as a result of that he would not be able to maintain frequent or regular contact with his father as he wished.

56.  The only real mitigating factor in this case is his guilty plea.  He is entitled to the full one-third discount from starting point for each offences as I have indicated. 

Totality

57.  I shall next consider whether the sentences should run concurrently or consecutively, be it wholly or in part.  I shall consider the principle of totality which means that the overall prison term must not be too lengthy, but it must properly reflect the overall criminalities of the offences.

58.  For the three burglary offences, they were committed on different dates and against different victims.  For the offence of possession of a dangerous drug, it is a matter separate and distinct from the other charges, albeit the drug was found in the defendant’s possession on the day when he was arrested for Charge 2.  Hence, it will be inappropriate to order these 4 sentences to run concurrently.  For the three handling offences, they are also separate matters from the other charges.  So, it will also be inappropriate to order these three sentences to run concurrently with the other four.  However, wholly consecutive sentences would be unduly long.

59.  In my judgment, a total sentence of 38 months should adequately reflect the overall criminality of the seven offences.  For this reason, I make the following orders.

60.  For each of Charges 1, 2 and 4, the defendant is sentenced to 24 months’ imprisonment.  For Charge 2, of the 24 months, 2 months will be consecutive to Charge 1 and the balance concurrent, making a subtotal of 26 months.  For Charge 4, which was committed while on police bail for Charges 1-2, of the 24 months, 3 months will be consecutive to Charges 1 and 2 and the balance concurrent, making a subtotal of 29 months.

61.  For Charge 3, of the 6 months, 3 months will be consecutive to Charges 1, 2 and 4 and the balance concurrent, making a subtotal of 32 months.

62.  For Charges 5, 6 and 7, 6 months of the concurrent sentence will be consecutive to Charges 1-4 and the balance concurrent.

63.  In summary, the defendant is sentenced to a total of 38 months’ imprisonment.