HKSAR v. ALI TAHIR

DCCC 631, 911 & 1091/2016 &
DCCC 111/2017 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 631, 911 & 1091 OF 2016 AND 111 OF 2017

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REASONS FOR SENTENCE

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Charges

1.  Defendant (Male) (Pakistani) appeared before me and pleaded guilty to a consolidated charge sheet consisting of 4 cases with 5 charges of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.  The offences are all domestic burglary cases committed by defendant in Hung Hom and Sham Shui Po in Kowloon between January and August, 2016.

Facts

DCCC 631/2016 (Case 1)

2.  The premises involved is located at T5/F, 18 Gillies Avenue South, Hung Hom (the "Premises") which had been rented by PW1's parents and was used as a storage at the time of the offence.  PW1 and PW1's mother would return regularly.  However, they did not reside at the Premises.  On 6 May 2016, PW1's mother left the Premises.  The Premises was secured with a metal gate and wooden door.  However, at the material time, the lock of the metal gate was not functioning and the wooden door was not fully closed.  As PW1 and her mother returned to the Premises on 7 May 2016, they noticed the Premises was ransacked with properties stolen.  After checking carefully, the following properties were stolen: -

(1) six bottles of hard liquor with the value of approximately HK$5,000;

(2) three digital cameras, value of approximately HK$3,000;

(3) two film cameras value of approximately HK$2,000

(4) two camera flash lights, value of approximately HK$1,000;

(5) a wooden statue, value of approximately HK$100;

(6) a shoulder bag worth about HK$200;

(7) a recycle bag worth about HK$100, and

(8) a wooden knife and paper box worth about HK$20.

3.  On the same day, while a team of police officers were on patrol in the vicinity, defendant was seen acting furtively in the staircase between 4/F and 5/F at 2 Gillies Avenue South, Hung Hom.  Upon interception and search, the stolen properties (mentioned above (2) to (5)) were found in the bag which defendant was carrying.  These properties were later positively identified by PW1.

4.  Defendant was arrested.  Under caution, with the assistance of Pakistani Urdu interpreter, he frankly admitted that that he had stolen the properties in question out of greed.  In the subsequent video recorded interview, he admitted that he went into the Premises at around 1 am on 7 May 2016 as he was walking by the Premises to look for a friend who lived on the roof top.  As he walked past the Premises, the door was left open, hence he walked in and stole the properties which were later found on him upon arrest.  He stayed in the Premises for about 5-7 minutes and he claimed that he acted alone in this case. (“Charge 1”)

DCCC 91 l/2016 (Case 2)

5.  On 5 July 2016, PW6 left his home at 2/F, 245 Ki Lung Street, Shum Shui Po (the "Flat").  When PW6 returned on 12 July 2016, he noticed that the wooden door of the Flat was prized.  Further, the Flat was ransacked.  PWs noted that the following properties were missing: a bookend, two pen, a fan, a wallet, a fridge, one painting and one cup, two watches, one necklace, three bottles of wine, one coca cola souvenir bottle, one set of commemorative bank notes, three mobile phones, one stamp album, some super market cash coupons, two tie clips, cash of RMB$50,000 and HK$20,000, a bottle of tangerine peel and one piece of ginseng, with the total value of approximate HK$183,969. Defendant’s fingerprint was found on the metal box which was placed on the bed inside the Flat.  Defendant remained silent under caution and PW6 did not know defendant at all. (“Charge 2”)

DCCC 1091/2016 (Case 3)

6.  On 1 May 2014, PW11 locked the wooden door and iron gate of T5/F, 95 Kweilin Street, Sham Shui Po, a residential building.  However, the flat was vacant and used by PW11 as storage.  As PW11 returned to the flat on 14 February 2016, she found that the iron gate and wooden door were prized open.  There was also signs of ransacking.  Upon check, PW11 found that 20 bottles of wine with the total value of about HK$60,000 were missing.  Two cigarette butts, two empty red packets and an empty bottle which did not belong to PW11 were found at scene.  Upon analysis, one of the cigarette butts contained defendant's DNA. PW11 confirmed that she did not know defendant.  Under caution, defendant remained silent.  He refused to answer questions from the police in the subsequent video recorded interview. (“Charge 3”)

DCCC111/2017 (Case 4)

7.  Ms. Yau left her home at Flat F, T 8/ F., Kweilin Mansion, 32 Kweilin Street at about noon on 14 July 2016.  As she returned at about 11 pm that night, she noticed the wooden door was opened with prized marks.  She further discovered that RMB$400, a Nikon camera and a Casio G-shock wrist watch went missing. (“Charge 4”).  Ms. Sholihah left her home at Room D, 8/ F., 248 Yu Chau Street in Sham Shui Po at about 10 am on 10 August 2016.  As she returned at about 1 am, she found her door was prized open and cash of HK$500 went missing ("Charge 5").  On 9 and 12 December 2016, two cautioned statements were taken from defendant in relation to Charges 4 & 5 respectively.  Under caution, defendant frankly admitted that he had stolen the properties in question from the flats, having entered the flats in question as a trespasser.

8.  At the material time, defendant entered the flats of Cases 1-4 as a trespasser and stole the abovementioned properties therein.

Criminal Record and Personal Background of Defendant

9.  Defendant has a clear record.  He is 25 years old and he is still single.  He came to Hong Kong at the age of 16 from Pakistan to live with his father who is a permanent citizen.  He had received a secondary education and in Hong Kong, he had worked as a construction worker and before he was unemployed, he had also worked as a delivery worker for a courier company on a casual basis earning a monthly income of HK$12,000 to $13,000.

Mitigation

10.  In mitigation, counsel for defendant explained that defendant became a drug addict since 2014 after he was estranged with his father in 2013 and mingled with some dubious peers.  He had a habit of consuming “ice” and he needed to spend a few hundred dollars for his daily consumption.  He foolishly committed the burglaries in order to feed his drug habits.  The main mitigation is his sense of remorse and his pleas of guilty which save the court’s time.  I was told that defendant had kicked his drug habit since incarceration and he wants to get married in Pakistan after serving his time and turn over a new leaf and return to Hong Kong and lead a stable and law-abiding life.

11.  Defendant’s counsel drew my attention to the fact that her client had freely admitted Charge 4 to Charge 5 when there was even no evidence against him.  As to Charge 3, based on instruction, counsel informed that defendant actually committed the offence in January, 2016.  Furthermore, there was no one in the premises when all these offences were committed and some of the premises were actually used as a storage space only with no occupant so there was no fear caused to those living there when the offences were committed.  I was also asked to view the offence in relation to Charge 1 as opportunistic burglary as the wooden door was not closed properly at the time.  All in all, I was invited to be as lenient as possible and bear in mind the totality principle when passing the sentence.

Sentencing Considerations

12.  The present case involves, as it were, multiple burglaries of domestic premises.  As far as sentence is concerned, much will depend on the aggravating circumstances of each individual case.  There is no notional upper limit.

13.  As to what will constitute aggravating features, in HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA said that: –

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

It is also apparent in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.

14.  In the present case, there were a number of aggravating features in that over the period when defendant committed the offences, he acted as a professional or serial burglar.  The burglaries were not merely opportunistic and on the four occasions other than Charge 1, the main door of the domestic premises were prized opened obviously with a crowbar or similar iron bar, this being an indication of a planned enterprise.  The total value of the property stolen for the five offences was more than HK$250,000 with the owner of Charge 2 suffered a hefty loss of HK$183,969 and the owner of Charge 3 also HK$60,000 worth of a box of fine wine.  In addition, defendant was arrested by the police on 7 May, 2016 in relation to Charge 1 which means three out of the five offences (Charge 2, Charge 4 & Charge 5) were committed while he was already released on police bail.

15.  That said, there were some mitigating factors. All the offences were committed when the occupants had left the premises and were therefore vacant thus luckily, there was no injury or fear caused to them when the offences were committed.  No substantial damage was done to the various premises nor to things found inside.  There was no evidence against defendant in the last two burglaries in Charge 4-5 but for his frank admission to the police and the value of stolen property in these two charges were relatively low, only RMB400 and HK$500 respectively.

16.  All the five burglaries in the present case were domestic.  As held by the Court of Appeal in HKSAR v Lau Pang [2004] 3 HKLRD 565, 3 years is the proper starting point for a first offender of full age in a case of domestic burglary. Defendant has indicated his decision to plead guilty in the first available opportunity in the plea court so he was entitled to a full one-third discount for his pleas of guilty.

17.  Although it is true that the burglary of Charge 1 was committed when the lock of the metal gate was not functioning and the wooden door was not fully closed, this defendant did not commit just one single burglary but he had committed repeated offences, and in his case five altogether, over a period of 8 months, which strongly suggested he was in fact a habitual and professional rather than an opportunistic burglar so I decline to treat him as a “sneak thief” in this charge because I am satisfied that he would have prized open the door of the premises anyway even if it was properly closed and locked, judging from his modus operandi in the other similar offences.

18.  As for totality, since each offence was separate and distinct in terms of time and place, and that no less than 5 offences had been committed repeatedly over the period involving different victims, there was no justification for wholly concurrent sentences.  I conclude that I am perfectly entitled to adopt a higher overall starting point than I might have adopted for a single offence, and to achieve the resulting sentence by way of partly consecutive and partly concurrent sentences.

19.  Before sentencing this defendant, I have carefully considered the facts of each offence, the mitigation advanced on his behalf and taken into account all the aggravating and mitigating factors present in this case.  I should say from the outset that defendant’s drug addiction and his urge to find quick money to feed his habit, as repeatedly stressed by his counsel, is not something I can accept as a mitigating factor at all.  Bearing in mind that the 5 charges demonstrated persistence over a period of some 8 months, with 4 of them (except Charge 3) actually committed in a space of 3 months only between May and August, 2016 and 3 offences committed whilst on police bail in relation to Charge 1, I consider the overall criminality attracts a starting point of 5 years or 60 months’ imprisonment which will be reduced to 40 months’ imprisonment for the defendant’s pleas of guilty.

20.  For individual sentence, I shall order defendant to serve 24 months’ imprisonment on Charge 1 (reduced by one-third from 36 months’ imprisonment).  On Charge 2, the proper starting point should be 45 months’ imprisonment (extra 6 months because of the high value of the stolen property and another 3 months because of the fact that this offence was committed whilst on police bail) and the sentence after one-third reduction is therefore 30 months’ imprisonment.  On Charge 3, the proper starting point should be 39 months’ imprisonment (extra 3 months because of the value of the property stolen), the sentence after one-third reduction is 26 months’ imprisonment.  For the remaining Charge 4 and Charge 5, in each case, the proper starting point is 39 months’ imprisonment (extra 3 months as these two cases were also committed whilst on police bail) and the sentence on each charge after the one-third reduction is therefore also 26 months’ imprisonment.

Order

21.  To recap, the individual sentence on each charge after enhancement (if applicable) and reduction is as follows: -

Charge 1- 24 months

Charge 2- 30 months

Charge 3- 26 months

Charge 4- 26 months

Charge 5- 26 months

22.  To achieve the overall sentence as I have indicated at the end of paragraph 19, I order that 8 months of the imprisonment term imposed in relation to Charge 2, 4 months of the imprisonment term imposed in relation to Charge 3 and 2 months of the imprisonment term imposed in relation to both Charge 4 and Charge 5 to run consecutively to the term imposed in relation to Charge 1, making a total of 40 months’ imprisonment.