HKSAR v. MD SAHAWAT HOSSEN SHOKAT

DCCC719/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 719 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of burglary and one offence of failing to surrender to custody without reasonable excuse. The defendant originally pleaded not guilty to the burglary. At the close of the prosecution case he changed his plea to one of guilty.

2.  Save for the challenge to the admissibility of the record of interview, most of the facts were not in dispute, and in the defendant’s challenge to the record of interview there were no substantial serious allegations made against any police officer or the interpreter.

3.  As far as the burglary is concerned, the defendant has admitted the facts of that case now and I convicted him.

4.  It occurred on 4 April this year in the afternoon, about 4 o’clock.  The defendant was seen coming out from the metal gate of a stone hut situated in Ta Kwu Ling.  He had a rucksack and he was pulling a nylon bag.  He took it over to a refuse collection point, where he was stopped by the police. 

5.  It may be taken from the cautioned statement that the defendant was trying to sell the items to somebody at the collection point.  These items were taken from the stone hut and what they consisted of was 49 kilos of electric cable, a ventilation fan, a spotlight, an electricity meter and a transformer.  The defendant had some items in his rucksack that would be useful for scavenging metals and such like, such as a spanner, pliers and scissors. 

6.  The defendant told the officer that he took the items from the stone hut.  In the video-recorded interview he again admitted he had taken the items from the hut and that he knew he was wrong to take those items.

7.  During the case I saw photographs of the stone hut.  It is a form of, I think it is described as a hut, but it is a kind of one-storey house.  It does not appear from the photographs to have been built as a residential property.  It has a sliding door on it so it can be used for storage.  From the outside it may appear somewhat derelict.  From the photographs of the inside it appears to be used for storage of items taken from construction sites.  It is surrounded by a metal fence which has two gates, one would normally have a padlock on and the other one would have a coded entry device, and it is clear from this that the house is not uninhabited or left derelict in that sense and clearly marks it a house that is in the possession of someone in that they have demarcated a space with the iron fence.

8.  Defence counsel says it is not a normal commercial kind of property and I think I agree with that proposition.

9.  Mr Mak, who was in charge of the premises, said it was used to store things that had been taken from construction sites and might be used in other sites later.  He found it difficult to assign any value to any of these items.

10.  The evidence appears to show to me that the defendant was scavenging for scrap.  There is no evidence that the padlock was on the rear gate or that the defendant broke in as it were through that gate which may have been open.

11.  As far as the defendant’s antecedents are concerned, he has a clear record.  He is from Bangladesh, coming to Hong Kong in 2009 and making a claim as a torture claimant.  Because of his conditions of stay he is not permitted to work in Hong Kong.  He gets a form of assistance from ISF in the terms of food and such like.  He would appear to be short of money and would appear to have indulged in this in order to get some extra cash.

12.  I have already said that in the course of his defence he made no real challenge to the prosecution evidence, the defence being conducted on a rather technical aspect of how the statement had been taken.

13.  As far as the other charge, the 2nd charge is concerned, the defendant did not attend court when he should have done, on 26 July 2011, and he was in fact arrested on 27 July when I am told by defence counsel he was on his way to actually report to the police under his bail condition.  The defence made a full admission of that offence in the course of the facts admitted by him, his mitigation on that offence being that he had forgotten that he had to go to court that day.

14.  In terms of sentence on the 1st charge, defence counsel submitted it may be inappropriate to proceed within the normal tariff which would require the starting point to be one of 30 months’ imprisonment, which would be the normal starting point on a commercial premises, it being put this is not a normal commercial premises.  It looks like an abandoned hut in the New Territories full of scrap and rubbish, there was no risk of meeting anybody there.

15.  I take the view that the imposition of the normal starting point in respect of this kind of burglary would be somewhat harsh on the defendant but it is a burglary and a sentence of imprisonment is required.  The tariffs are not, as I say, straightjackets.  One can depart from them in certain circumstances.

16.  On the 1st charge I consider an appropriate starting point for sentence would be 16 months’ imprisonment.  The defendant has pleaded guilty late to this offence but nevertheless his defence has not really challenged much of the prosecution case so he showed remorse in that sense.  I shall give him a discount from sentence of 25 per cent, which is 4 months’ imprisonment.  That leads to a sentence of 12 months’ imprisonment on the 1st charge.

17.  On the 2nd charge, the defendant did not come to court.  That is a serious matter and warrants a sentence of imprisonment.  He has clearly said that he had no reasonable cause not to be here and failure to attend on a serious offence of course is a serious matter. 

18.  I take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.  I shall order that will run consecutively to the sentence on the 1st charge to a total of 14 months’ imprisonment.

19.  In addition, the defendant’s bail money will have to be estreated.  No cause has been shown why his bail money should not be estreated.

20.  So the overall sentence is one of 14 months’ imprisonment with the defendant’s bail money being estreated on the 2nd charge.