HKSAR v. MUBIRU ARAFAT

DCCC 70/2018

[2018] HKDC 648

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 70 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Attempted burglary”, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (first charge), one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (second charge) and one count of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212 (third charge).

The first charge

2.  At the material times, the defendant was a non-refoulement claimant.

3.  On 11 October 2017 at around 1:41am, the defendant climbed onto the balcony of Mr Christopher’s flat at the 1^st floor, 17 Shelley Street, Central.  At that time, Mr Christopher was sleeping therein.  Having noticed there was a CCTV camera above the balcony door, the defendant covered his face and tried unsuccessfully to open the door.  He then removed the camera at about 1:44am.

4.  In the morning of 11 October 2017, Mr Christopher discovered the handle of the balcony door damaged.  He later discovered the CCTV camera was missing.  The repair costs for the door handle and the replacement costs for the camera were about HK$1,000 and HK$1,800 respectively.  A report was made to the police.

The second and third charges

5.  On 14 October 2017 at around 5am, the defendant wandered around Nikken Heights, 12 Prince’s Terrace, Central and climbed up and entered Room A on the 3^rd floor of Nikken Heights through the kitchen window of the flat, which was opened.  The flat was occupied by Mr Liu and his domestic helper Ms Miranda, who were sleeping at that time.

6.  The defendant entered the bedroom of Ms Miranda and hit her head with a beer glass bottle.  The glass bottle was broken and beer flowed down on Ms Miranda’s head.  The attack resulted in a lump in the left temporal region of Ms Miranda’s head.  She felt painful and frightened and remained in her room after she was attacked.

7.  The defendant then stole Mr Liu’s smartphone, valued at about HK$1,400, from the living room and left.  The matter was reported to the police. 

8.  On 14 November 2017, the defendant was arrested for the burglary of Mr Liu’s flat.  Under caution, he admitted entering that location. 

9.  In subsequent video-recorded interviews, the defendant stated under caution that he did not remember what he was doing at the time of the attempted burglary of Mr Christopher’s flat and he was at his friend’s home at the time of the burglary of Mr Liu’s flat.  When he admitted entering the location, he was referring to his friend’s home, not Mr Liu’s flat.  Subsequent investigation revealed that the address of the friend provided by the defendant is the address of a school. 

Mitigation

10.  The defendant is aged 23.  He is single and supported by his father in Uganda.  Before he came to Hong Kong in 2017, he worked as a dancer.   He came to Hong Kong in June 2017 and applied for asylum status.  He is currently a Form 8 recognizance holder.  He has no criminal conviction record in Hong Kong.

11.  In mitigation, it was agreed that the usual starting point of 3 years’ imprisonment is applicable to both the first and second charges.  It was conceded that the offences were committed at night when the premises were occupied.  It was also conceded that the court could take into consideration the fact that the CCTV camera was removed in respect of the first charge.  For the aggravating feature that the defendant is a Form 8 holder, it was submitted that the enhancement should be 3 months or less.  It was further submitted that the statistics provided by prosecution did not show a huge increase in burglaries committed by Form 8 holders and thus no additional enhancement was justified.  Regarding the third charge, the defence conceded the circumstances of the third charge is more serious than the assault charge in HKSAR v Lau Hiu Man [2013] 2 HKLRD 862 and that the starting point should be higher than 4 months.  The court was urged to impose a lenient sentence on the defendant.

Sentence

12.  There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

13.  The defence agree that this guideline is applicable to both the first and the second charges.  In respect of these two charges, I adopt a starting point of 3 years’ imprisonment.  Since both offences were committed at night in premises which were occupied, this is an aggravating feature justifying an enhancement of 3 months for each charge. Regarding the first charge, there is the additional aggravating feature that the defendant removed the CCTV camera as a result of which Mr Christopher had to incur a replacement cost of HK$1,800.  I consider this justify a further enhancement of 3 weeks.  As the defendant is a Form 8 holder at the time of the offences, I enhance the starting point for these two charges by another 3 months.  Therefore, the starting point for the first charge is 42 months and 3 weeks while the starting point for the second charge is 42 months.

14.  The third charge relates to the attack of Ms Miranda, the domestic helper of the flat.  This attack is more serious than the attack in Lau Hiu Man’s case.  In our case, instead of simply frightening Ms Miranda, the defendant chose to use a glass bottle and hit her on her head.  As a result, the glass bottle was broken and Ms Miranda sustained a lump on her head.  I have no doubt Ms Miranda was put in great fear at that time and that was why she remained in her room after the attack. I consider the appropriate starting point is 9 months’ imprisonment.

15.  The only mitigation is the defendant’s guilty plea.  He is entitled to the usual 1/3 discount for the plea.  The sentences for the 3 charges are therefore reduced to (i) 28 months 2 weeks; (ii) 28 months; and (iii) 6 months respectively.

16.  All 3 offences committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 42 months and 2 weeks is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order that 10 months of the sentence for the second charge to be served consecutive to the sentence for the first charge and 4 months of the sentence for the third charge to be served consecutive to the sentence for the first and second charges.  I hereby sentence the defendant to 42 months and 2 weeks’ imprisonment.