HKSAR v. WASAT KHAN

DCCC 625/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 625 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of burglary. Particulars of the charge are that he on 28^th April 2017 entered as a trespasser a hut on the rooftop of nos.467-469 Reclamation Street in Mongkok with intent to steal therein.

Summary of facts

2.  The hut in question is a walled structure with metal sheets as roofing material. It was used mainly as a storage room by Mr Orwin and Ms Law, the occupiers.

3.  At around 4pm on the charge date, Mr Orwin found that the door latch of the iron gate of the hut was bent.

4.  Later on, at around 9:15pm, two pedestrians standing at a bus stop near nos.467-469 Reclamation Street (hereinafter as “the building”) were hit by glass fragments that fell from the Building. They suffered very minor injuries.

5.  Police officers were summoned and they patrolled the Building to look for clues of where the glass fragments might have come from.

6.  They found parts of a glass window at the stairway between the 8^th floor and the rooftop of the Building missing.

7.  Upon investigation, Mr Orwin told the Police officers about how he found the latch of the iron gate of the hut bent earlier on in the day.

8.  Police officers proceeded to look inside the hut and found the defendant hiding underneath the bed.

9.  Upon inquiry, the defendant told the Police officers, in Cantonese, that he intended to steal inside the hut. The defendant was then arrested.

10.  Under caution, the defendant said that he had brought an electric grinder and connected it to the electricity distribution box in the staircase to use it to open the lock of the hut so that he could enter to steal. He accidentally broke the glass window in the process.

11.  Mr Orwin confirmed that nothing was stolen from the hut, and the only damage caused was the to the door latch of the iron gate. The padlock of the iron gate was found on the floor outside the hut.

12.  The defendant admitted to the final paragraph of the summary of facts, which states that the defendant had entered the hut as a trespasser with intent to steal.

Previous convictions

13.  The defendant has 8 previous convictions from 6 court appearances. Of the 8 convictions, 3 were for thefts and one for attempted theft.

14.  The last two convictions are both dated 23^rd May 2017, which was after he had committed the present burglary, and should not be held against him for the purpose of sentencing in this case.

15.  Those 2 convictions were for attempted theft and possession of dangerous drugs when he was made the subject of a Drug Addiction Treatment Centre order on 23^rd May 2017.

16.  At the time of the defendant’s commission of the burglary, the defendant’s latest convictions were for theft and breach of suspended sentence imposed for an earlier theft case. For that, the defendant was sentenced to a total of 3 weeks’ imprisonment.

17.  The defendant was released from jail on 7^th December 2016. He committed the burglary on 28^th April 2017, being 4 months and 21 days after his release.

Mitigation

18.  Mr Nasir provided the court with a very helpful bundle for mitigation.

19.  The defendant is 38 and married. His wife and three sons reside in Pakistan. The defendant is unemployed and is a recipient of Comprehensive Social Security Assistance.

20.  Mr Nasir submits that since the hut was likely to be an illegal structure, it could not be legally occupied. That being the case, it could not be categorized as a domestic or residential premises.

21.  Mr Nasir pointed out that the Building is an old building and the roof is a common area not belonging to any individual owner.

22.  It is Mr Nasir’s submissions that the premises that the defendant burgled should not be categorized as a domestic premises for the purpose of sentencing.

Sentence

Domestic or non-domestic premises?

23.  First of all, I do not agree with Mr Nasir’s submissions that an illegal structure cannot be legally occupied and therefore cannot be a residential premises.

24.  It is the true nature of the use of the premises that is relevant when considering whether a premises is domestic or not, as demonstrated by the rationale behind the Court of Appeal’s findings on the hotel room being akin to a domestic premises in the case of HKSAR v Ng Wai-hing [2003] 2 HKLRD 338; CACC 621/2002.

25.  In Ng Wai-hing, a hotel room was burgled and it came for the Court of Appeal to consider whether the hotel room should be categorized as a domestic or non-domestic premises for the purpose of sentencing.

26.  In deciding that it is akin to domestic premises, the Court pointed out why burglary of a domestic premises should attract a more severe sentence:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.”

27.  In our present case, the hut was being used for storage purpose. It is located on the rooftop of an old residential building. There is nothing to suggest on the outside that it was being occupied as a home. This is strengthened by the fact that the door was locked from the outside by way of a latch with the use of a padlock. With a latch on the outside, the occupants inside could easily have been prevented from leaving their home if someone applied the latch and locked it. This is not how a place of residence would be secured.

28.  I find that the facts tend to suggest that the premises was not being used as a residence. For that reason, I find that, for sentencing purpose in our present case, the customary sentence for non-domestic premises should be applied.

29.  It is not disputed that the guideline sentence for burglary of a non-domestic premises for a first offender is that of 30 months’ imprisonment.

Aggravating factor

30.  Although the use of the electric grinder by the defendant to open the lock on the iron gate of the hut does suggest some planning, I find that the circumstances of the execution of his plan not sophisticated or serious enough to warrant the sentence to be enhanced on that basis.

31.  I find, however, the fact that the defendant committed the present offence about 4 months after his last release an aggravating factor. It must be borne in mind that the defendant was in breach of the earlier suspended sentence which was fully activated. Yet, the defendant was undeterred and chose to commit the burglary within a relatively short time after his release.

32.  For this aggravating factor, I will enhance the sentence by 3 months, leading to a sentence of 33 months’ imprisonment.

Mitigating factor

33.  I find that the only mitigating factor is the defendant’s timely guilty plea. For that, he is granted the full one-third discount.

34.  The defendant is, therefore, sentenced to 22 months’ imprisonment.

35.  Pursuant to s.6A(1)(b) of the Drug Addiction Treatment Centre Ordinance, Cap.244, the DATC order imposed on 23^rd May 2017 shall cease to have effect upon the imposition of the present sentence.