HKSAR v. RONY HOWLADAR

DCCC 320/2023

[2024] HKDC 880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 320 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has entered pleas of guilty to two charges on this indictment, the first one of burglary on 4 August 2022 at a hut located in Kam Tin, Yuen Long in the New Territories where some electric wires valued at $500 were taken. Later on 1 September 2022, defendant has admitted to a theft that occurred at some grassland again in Kam Tin in Yuen Long in the New Territories. On that occasion some electric cables valued at around $1,000 were taken.

2.  As far as the facts are concerned, it is agreed the defendant is a Form 8 holder.

3.  Now the 1^st charge, the burglary, was committed in what is described as a “hut”.  The facts established that it has four walls and a roof and an air hole gap.  Now on 4 August 2022, it was discovered that some $500-worth of electric wire had been taken from the hut.  A review of a nearby CCTV camera showed the defendant just after 3 o’clock in the morning climbed up the hut’s walls and put his arm into the air hole and apparently his upper body as well and by doing that had taken the items set out in the indictment.

4.  As far as the theft charge is concerned, this relates to some electrical cables left on grassland outside a house at a different address.  The victim had placed the cables inside black plastic wrapping and left them on the grassland.  He values that item at $1,000.  Again, the defendant was captured on a CCTV camera searching the grassland and apparently taking those items. The defendant had been wearing some distinctive clothing when he did these offences and they were identified and as a result of that the defendant was arrested on 14 September 2022.  The defendant admits, as I said, the offences in full.

5.  As far as his background is concerned, he is aged 35, born in Bangladesh.  He has one offence of burglary sentenced on 19 December 2022 when he was sentenced to 16 months’ imprisonment.  That is, I am told, a subsequent conviction.  At the time of these offences defendant was of clear record.  The defendant came to Hong Kong in 2013 as an asylum seeker.  As such, he is of course reliant on what is described as subsidies from the State.  It does appear that the defendant supplements this by some scavenging behaviour and also by burglary.

6.  Looking at the factors determining sentence, the defendant of course is a Form 8 holder which is an aggravating factor.  The offences themselves are committed within a fairly short compass between 4 August and 1 September in 2022.  The offences are unsophisticated, no tools or implements were used.  The defendant acts alone, takes low value items taken at the early hours of the morning when the places would be deserted, preying on crude storage facilities.  There is no sophisticated planning involved in these offences.

7.  The 1^st offence, that of burglary, is subject to a sentencing guideline and that can be found in the case of HKSAR v Sim Ka Wing which is CACC 450/2000.  The guidelines articulated there are relating to non-domestic premises which we are dealing with today where it said the conventional starting point of 2½ years’ imprisonment, that is 30 months’ 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 burglary akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.

8.  As far as the 2^nd charge is concerned, there is no sentencing guideline.

9.  As far as the aggravating factor of being a Form 8 holder, an enhancement to sentence can be made as a result of that factor.  The length of the enhancement is within the discretion of the court.  The enhancement is to have a deterrent effect.  The overall totality must be born in mind.

10.  Taking these factors into account and applying them to the present case, I see no reason particularly to depart from the starting point of 30 months’ imprisonment in respect of charge 1.  As far as the enhancement is concerned, the offence is committed, as I said, in a crude premises late in the early hours of the morning.  I consider enhancement of 3 months’ imprisonment is sufficient.  On charge 1, that will lead to a final sentence of 33 months’ imprisonment, subject to the one-third discount for the defendant’s plea of guilty.  That leads to a sentence of 22 months’ imprisonment on charge 1.

11.  As far as the 2^nd charge is concerned, I take a starting point of 3 months’ imprisonment and add a further 3 months to that sentence to reflect the defendant’s Form 8 status.  To take into account the defendant’s plea of guilty, then that is reduced by a third to a sentence of 4 months’ imprisonment.

12.  These offences are spaced in time and so can be served consecutively. Having regard to the overall totality of the offending here, what I shall do is order that 2 months of the 2^nd charge be served consecutively to the 1^st charge and the balance concurrently, leading to a total of 24 months’ imprisonment and that will be the sentence.