HKSAR v. MUHAMMAD AKBAR

DCCC 500/2017 & DCCC 977/2017
(Consolidated)

[2018] HKDC 453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 500 & 977 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant, a Pakistani and a Form 8 holder, admitted to committing two burglaries within more or less a month of each other – the first burglary in December 2016 on a residential flat (Charge 1) and the second in January or February 2017 on an office (Charge 2). The two burglarized premises are situated in different but next to each other commercial-cum-residential buildings, which are part of the same building complex known as “Happy Mansion”, on Percival Street, Causeway Bay.

2.  From the 3^rd floor upwards all premises in the building where the first flat situated were vacant and awaiting re-development; and the building where the second flat situated was also awaiting re-development and occupants from the 3^rd floor upwards had moved out. There are no lifts, security guards or surveillance cameras in the buildings.

3.  In the first burglary, the flat in question is situated on 5^th floor of a 9-storey building, where a Miss Chan and her family used to live there until 22 December 2016 when they moved out leaving behind some furniture and personal belongings; and thereafter the flat has been used by the Chans’ as a storage place.

4.  About a week later in the afternoon of 29 December, Miss Chan returned and discovered that the lock of the wooden door of her flat had been damaged and someone had ransacked the place but fortunately there was nothing missing. A report was made to the police.

5.  Police lifted some fingerprints from a dictionary on a table in the flat which were later found to be matched to the defendant, who was thus placed on the Wanted Persons list.

6.  The evidence of fingerprints led to the arrest of the defendant about 3 months later on 7 April 2017. In his interview with the police, the defendant told the officers that he had entered the flat with a friend with a view to helping his friend to remove an air-conditioner in the flat.

7.  In fact, the defendant had committed yet another burglary before his arrest in April; this time he was able to take away a thousand dollars’ worth of cameras from a 3rd floor office in a building next to the one where the first burglary occurred.

8.  Mr. Koo, the occupier of the office, secured all the windows and doors before leaving it unattended on 26 January 2017. He returned about 2 weeks later on 7 February and discovered that the door of the office was locked from inside, a window inside the bathroom had been prized open and the wire securing the grille was cut.

9.  Inside, Mr. Koo found a pair of someone else’s pliers in the kitchen and some blood stains on the door of the washroom, and the two Nikon cameras placed in the drawer under the bed had gone missing.

10.  The evidence of DNA, the blood stains, linked the defendant to the burglary. 

11.  The defendant, aged 39, has amassed 8 previous convictions over the past 15 years none of which are similar to the present offence. His last conviction is one of possession of drugs back in 2016 for which he was sent to prison for 6 months.

12.  It is stated in his antecedent statement that the defendant came to Hong Kong from Pakistan in 2006 and sought political asylum here on 23 July 2007. He is currently allowed to remain at liberty by virtue of a recognizance issued by the Director of Immigration whilst his claim is being processed.

13.  Defence counsel told the court that the defendant agreed to the contents of his antecedent statement but there isn’t much in it he would like to tell the court, for example, he refused to disclose information about his education, employment, his living condition as well as his family background.  And such information isn’t forthcoming either by way of mitigation.

14.  Defence counsel mainly stressed in mitigation the fact that the buildings where the burglarized premises situated were vacated at the time awaiting redevelopment and asked the court to take a lower than usual starting point. 

15.  The authority the defence relied upon is the case Lee Chiu Yui CACC 24/2014 in which the Appellate Court mentioned two other authorities, namely Chau Man Ying CACC 439/2011 and Shea Pat Chi CACC 196/2012.  Here “vacated” or “vacant premises” mentioned in the cases means the occupier ceased to occupy as opposed to the premises being temporarily unoccupied at the time as when the occupier went on holiday.

16.  If a plea for vacant premises could be made out, the court might depart from the usual sentencing guidelines and adopt a lesser term, as in Chau case above one year (actual time spent in custody) and in Shea case two years’ imprisonment term. In paragraph 11 of the judgment, the higher court has this to say:-

“Regardless of their different results, both the Chau case and the Shea case lend support for the proposition that in the highly unusual situation where observably vacated premises with no or little loss of property are involved, the sentence for the burglary may reflect that fact by the adoption of a lower starting point for sentence. It is irrelevant whether the premises are domestic or commercial.”

17.  The other issue which the defence had raised during mitigation is that they say both burglaries were opportunistic in nature because in the first burglary, the door lock was already damaged and in the second, the window was already prized open, before the defendant came around to the premises.    

18.  The first question I need to deal with is whether the two burglarized flats in the present case amount to vacant premises.  The facts clearly state that that part of building where the flats situated were vacant and the buildings as a whole were awaiting re-development.

19.  Mr. Swainston, the prosecuting counsel, has clarified it by supplying further information to the court that the occupiers, Miss Chan and Mr. Koo, had told police that they had no intention of moving back to the premises after they had moved out, despite the fact that they did go back to check the situation.  In the circumstances, I would regard the burglarized flats as vacated premises.

20.  As far as ‘opportunistic’ burglary is concerned, I have doubt about the defendant’s claim, especially in relation to the burglary on the office. If someone beat him to it, I would not expect the defendant to be able to find further valuables there like the Nikon cameras – they would have been taken away by the burglar before him.

21.  Regarding ‘opportunistic’ burglary, Mr. Justice McWalters expressed his opinion on this subject in the case, Tsang Chun Yin CACC 170/2017 as follows:-

Paragraph 49 of the judgment
“Returning to the questions I posed, what is meant by an opportunistic offence and what is it about such an offence that lessens the culpability of the offender? If it means no more than that the offence was not premeditated then the extent to which that would lessen the culpability of the offender may very much depend on whether it is only an isolated lapse. Where, as here, it is not an isolated lapse what does it tell us about the offender? It may simply suggest that although the offender is not a professional criminal he is willing to resort to crime whenever the opportunity presents itself. Such an opportunistic offender is hardly likely to excite the sympathy of the court; indeed, for such an offender the court may well incline to regarding the offender as being in need of a deterrent sentence.”

Paragraph 50 of the judgment
“Clearly, the most value that an opportunistic offence can have as mitigating the culpability of an offender is when the offender is involved in criminal conduct on only one occasion, the criminal conduct is unpremeditated and the criminal conduct took place in circumstances where the ease with it could be committed tempted the offender into an out of character lapse in judgment. The commonly cited examples are where there is an open window or door which ‘invites’ entry and which reveals tempting property in plain view. The less the conduct can be portrayed in this way the less, it seems to me, it reduces the culpability of the offender.”

22.  The defendant in the present case clearly set out to commit crimes. He went up the buildings to look for target to burgle; he did it not once but twice within a month’s time - there must have been some planning in advance. Given the vacant condition of the buildings at the time, however, it’s quite irrelevant to talk about how the burglar made his way in; to me, it makes little difference in terms of culpability whether he broke in by force or just pushed open a damaged door to get in a flat ceased to occupy. The defendant’s case, in my view, is several removes from the opportunistic burglary.

23.  Having taken into account the particular facts of the present case, the vacant condition of the buildings in particular, I am prepared to take a lesser starting point. For each burglary, I’ll take 21 months as starting point.

24.  In the first burglary, there is indeed an aggravating feature, i.e. the defendant was acting in concert with another person, in the commission of the burglary. For that matter, I add 3 months on top taking the starting point for charge 1 to 24 months.

25.  Another aggravating factor is that the defendant is a Form 8 holder at time of committing the present offences; he has abused the hospitality extended to him by the authorities and the people of Hong Kong, and on this ground, I add a further 3 months for each charge. The starting point for charge 1 is therefore 27 months and for charge 2, 24 months.

26.  As far as his mitigation is concerned, apart from his pleas of guilty, there isn’t anything of substance; his pleas, however, aren’t timely because he only changed his pleas on the first day of trial. In the circumstances, he is only entitled to a 20 % discount.

27.  Giving the appropriate discount, the starting point for charge 1 is reduced to 21 months, and for charge 2, 19 months.

28.  The two offences are separate and distinct, the terms should have been made consecutive to one another but for the principle of totality, I order that the term of charge 1 be run consecutively to 5 months of charge 2, making the total term one of 26 months.

29.  As there is nothing justifying a further reduction in sentence, the defendant is therefore sentenced to a total term of 26 months’ imprisonment.