HKSAR v. NOMAN AHMAD AND ANOTHER

DCCC998/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.998 OF 2010

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Reasons for Sentence

1.  The defendants are convicted after trial of one count of attempted burglary. The facts are as stated in my Reasons for Verdict and I will not repeat them here.

Previous

2.  D1 has 1 conviction, but is regarded as a spent conviction under the Rehabilitation of Offender Ordinance, Cap. 297. D1 was convicted on 9^th February, 2011 for possession of offensive weapon, s.17 of cap.228, in the Tsuen Wan Magistracy.

3.  D2 has a clear record.

Mitigation

4.  D1 is 30 years old. He came to Hong Kong in 1997 from Pakistan, having been educated there up to Form 4 level. His father and 3 brothers are all in Hong Kong, while his 2 sisters are in Pakistan. Before his arrest, the defendant was working as a part time driver earning about 6,000 per month.

5.  D2 came to Hong Kong in 2007 as an asylum seeker and torture claimant. He is not allowed to work in Hong Kong and is living on government assistance. All his family members are in Pakistan.

6.  It was point out in mitigation that this is an attempted burglary where nothing was stolen. There was only minor damage to property, about 500 dollars’ worth. There was no evidence of the defendants using the spanner to loosen the screws. It was submitted that the defendants may be classified as opportunistic burglars. There was a possibility that they walked pass the alley, saw the plate already prized open and then proceeded to see what was inside for stealing.

Sentencing tariff

7.  The established sentencing tariff in relation to burglary of a non-domestic premises is 2 and a half years’ imprisonment. There is no difference in sentencing for an inchoate offence.

Sentence

8.  I have heard the mitigation put forward on behalf of the defendants and I find that there is nothing to allow me to depart from the sentencing tariff. I find that the fact that D2 had gone further than just putting his hands into the opening by pulling at the iron plates stopped him from being classified as an opportunistic burglar. Furthermore, the evidence is that they were not living nearby and there was simply no reason why they should be there in the rear alley but to look to find a suitable premises to burgle. I find that they are not opportunistic burglars.

9.  Therefore, in relation to both D1 and D2, I will adopt a starting point of 2 and a half years’ imprisonment each. The defendants are convicted after trial and so there will be no discount. D1 and D2 are each sentenced to 2 and a half years’ imprisonment.

10.  D1 is presently serving a 6 months’ imprisonment sentence in relation to a charge of possession of offensive weapon, which was committed on 18^th June 2010. I was told by counsel for D1 that D1 committed the present attempted burglary offence whilst on bail for the offensive weapon offence. I will therefore order that the sentence in this attempted burglary case to be served wholly consecutively to the sentence in the other case.