HKSAR v. KHAN ASIF

DCCC745/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Reasons for Sentence

1.  The defendant, Khan Asif, pleaded guilty before me to failing to surrender to custody but as far as the offence of burglary was concerned he was convicted after trial.

2.  The prosecution case was that, late at night, the defendant together with another man was seen wandering in the rear lane as particularised in the charge.  They were looking to an overhead open window of a grocery shop.  They came out of the rear lane to look around and back to the alley.

3.  The defendant climbed on to the window of the shop with the support of the other man from below.  He put his head into the window for 5 to 6 seconds and then withdrew it.  He looked down to his companion, then put his head into the window again for 5 to 6 seconds.

4.  Their action was interrupted when a passer-by happened to walk past the alley.  The defendant came down and walked out of the alley with the other man, they were then stopped by the police.  The defendant said under caution he did not know why he climbed up.  He was arrested for the offence of burglary.

5.  The matter came to court.  The defendant was given bail on 18 September 2007 to appear on 3 December 2007 in the District Court for his trial.  The defendant did not turn up at his trial and was subsequently arrested on 7 September 2008.  He said he had overslept, waking up at 2 pm on his trial day and afraid to attend court for fear of arrest.

6.  The defendant is not unknown to the court.  He has nine previous convictions.  Three of them involved dishonesty.

7.  In mitigation, the court is told that the defendant lived with his brother here in Hong Kong.  His other family members are in Pakistan.  The offences he committed in the past, three are similar ones.  He had already served his sentence.  The sentences are not long.  As far as the absconding offence is concerned, his counsel said he was remorseful.  He overslept.  He did not set out to fail to surrender to court albeit he had not had a reasonable cause.

8.  For the offence of burglary there are sentencing guidelines.  For non-dwellings the sentence is one of 2½ years in a normal case without added aggravation.

9.  I have considered the facts of the present case and I do not think this is an opportunistic burglary.  What I mean by opportunistic is that a thief came upon a property and discovered, say, a broken window or a door left on the latch.  He got in without doing anything further.

10.  This is not the case here.  The two of you needed to help each other in order to get access to the window in question.  The other man needed to support the defendant from below, so that the defendant could hold on to the window ledge.  Then he could put his head in the window to look about to see if anything was worth taking.  You went to all the trouble to get access to the window.  This is something I would not term as opportunistic.

11.  It is true to say there was no property lost and all that you did was to put your head into the window of a shop to see if anything worth taking.  But in my view there are aggravating features in the present case in that you were acting in concert with another man.  On the facts before the court, I find no reason to depart from the usual sentence guidelines as set out by the higher courts.

12.  For the offence of burglary I sentence you to a term of 30 months and I see nothing in your mitigation to justify a reduction in sentence.

13.  As far as the absconding offence is concerned, you said you overslept.  I do not accept it.  You said you woke up at 2 pm.  You could have come to court in the afternoon but you chose not to do so and were on the lam for over a year before you were arrested by the police.

14.  I am sure you deliberately absconded at your trial.  This is in defiance of a court order and such conduct should not be encouraged.  In my view, it should be deterred.  An immediate custodial sentence is inevitable to bring about the deterrent effect.

15.  Taking into account all the mitigation, I take 3 months as starting point, reduced to 2 months to reflect your plea.  Again, I see nothing to justify a further reduction in your sentence of 2 months’ imprisonment for the offence of absconding.

16.  The two offences are separate and distinct and I order the terms to run consecutively to each other.  The total term is one of 32 months' imprisonment.