HKSAR v. RAFAQAT

DCCC 1086/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1086 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one count of burglary, contrary to the Theft Ordinance.

2.  The facts of this case are straightforward.  On 12 August 2016, the defendant entered a building under construction but almost completed in Happy Valley.  In fact, the building had 28 floors, the roof was installed, and the premises could only be entered by a gate.  The defendant admits he entered into the building without permission.

3.  There is CCTV footage inside the building that sees the defendant go up and downstairs on three separate occasions.  He goes upstairs without carrying anything but would come down, carrying a nylon bag on his shoulders on each occasion.  The defendant needed help from a second person to load the three bags into a taxi.  A police officer saw the defendant and another loading the three bags into the taxi at about 3.15 in the morning.  The man who helped the defendant walked away almost immediately whereas the police officer stopped the taxi.  However, the defendant got out and ran away.  He did leave his slippers or shoes behind.

4.  Subsequently, the police found in the taxi three nylon bags, each filled with cooper wire belonging to the construction company at that construction site.  The value of the property was over $12,000.

5.  The police then found the man who helped the defendant load the bags into the taxi nearby.  He was arrested and under caution denied the offence.  He did admit helping the defendant load the bags into the taxi but nothing more.  He did lead the police to the defendant’s home in North Point.  The police laid in wait outside the defendant’s home, and later that night the defendant returned to be arrested.

6.  Clothes were seized from his home as they resembled the items he was wearing as seen in the CCTV footage.  At a subsequent identification parade, the police officer who saw the defendant in the taxi positively identified him.

7.  The defendant’s best mitigation is his plea of guilty.  The defendant is a 34-year-old man from Pakistan who arrived in Hong Kong in 2008.  He is seeking asylum in Hong Kong and has been issued a Form 8 reconnaissance.  He is not a man with a clear record here and has five previous convictions beginning from 2011.  His last two convictions were for theft in 2015 and 2016.

8.  Mr McGowan has said all he can say on behalf of the defendant in mitigation.  The antecedent statement also sets out the defendant’s background and family circumstances.  What is pertinent is the fact that at the time of the offence, he was a drug addict.  I have been told in mitigation that it is this addiction that led to the commission of this offence.  He needed money to fuel and feed his drug addiction.  On the night of the offence, he happened to see the gate of the building open.  So he entered to see if there was anything worth stealing.  If he found anything of value, he would sell it to buy drugs.

9.  The normal starting point for a burglary of a non-domestic premise is one of 2 years and 6 months where there are no aggravating or mitigating factors.  I take into account the defendant’s plea, mitigation and also the fact that the premises were still in essence a construction site.  But I also take into account the defendant did not look and take what he could see or carry and leave quickly.  He was seen on CCTV at 1.22 am and was clearly in the building for some time.  He made three separate trips up and downstairs to steal three loads of wire.  He was then seen loading them into a taxi some two hours after he was seen on CCTV.  In addition, the value of the wire is not insignificant.  It is over $12,000.

10.  I see no reason, bearing in mind all these facts, to depart from what is a normal starting point of 2 and a half years’ imprisonment. 

11.  Defendant, please stand up.  You have pleaded guilty and therefore entitled to a discount of one-third.  That is a discount of 10 months.  Once that discount is applied for this offence, you are sentenced to a term of imprisonment of 1 year and 8 months.  Do you understand that sentence?

DEFENDANT: Yes, I understand.