HKSAR v. MOHAMMAD SHAHZAD

DCCC 900/2022 & 830/2023 (Heard together)

[2023] HKDC 1820

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 900 OF 2022

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 830 OF 2023

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REASONS FOR SENTENCE

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1.  DCCC 900/2022 and DCCC 830/2023 are dealt with together because D1 in both cases are the same defendant and the second case took place about 2 months after the first. Ateeq Ur Rehman (“Ateeq”)  in the first case was absent at the last hearing, as a result of which warrant of arrest was issued against him. Thus, ‘D2’ referred to hereinafter is only the second defendant in the second case.

A. CHARGES AND FACTS

A.1 DCCC 900/2022

2.  D1 pleaded guilty to one charge of burglary, contrary to 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  The particulars are that D1 and Ateeq, on 16 February 2022, in Hong Kong, together with a person unknown, having entered as trespassers part of a building known as Ground Floor, No 95 Oak Street, Tai Kok Tsui, Kowloon, stole therein 19 copper pipes.

3.  D1 admitted the following facts.  On 15 February 2022 at around 5:30 pm, Mr Cheng Leung Chun (“PW1”), a foreman in charge of the demolition project at Ground Floor, No 95 Oak Street, Tai Kok Tsui, Kowloon (the “Location”), checked and confirmed that the entrances were secured with metal chain and padlocks before leaving.

4.  On 16 February 2022 at around 1:00 am, police officers conducted an anti­burglary operation in the vicinity of the Location.  At around 3:33 am on the same day, PC17857 saw D1 and an unknown person entered a rear lane furtively at the Location.  Two minutes later, Ateeq joined the duo.

5.  The trio walked up the rear staircase together at the building at Nos 89 - 91 Oak Street.  They soon left the staircase together and walked towards Nos 93 - 95 Oak Street and entered the building thereat.

6.  At 3:57 am, the trio left Nos 93-95 Oak Street and returned to the rear lane at the building at Nos 89-91 Oak Street.  Ateeq left D1 and the unknown person.  Shortly afterwards, Ateeq joined D1 and the unknown person again outside No 55 Anchor Street, during which the unknown person placed a red-white-blue nylon bag on a trolley, and Dl put a red recycling bag on that nylon bag, tied the bags together and left.

7.  At 3:59 am, police officers intercepted D1 and Ateeq.  They put up a struggle, attempted to flee and were subdued by police officers.  Upon search of the trolley in D1’s possession, a red-white-blue nylon bag containing 19 pieces of copper pipes (worth HK$5,000)  and an orange plier were found.

8.  PW1 confirmed that the 19 pieces of copper pipes seized by the Police from the nylon bag on the trolley controlled by D1 were placed at the Location.

9.  CCTV camera installed in an adjacent building captured that the trio appeared at the rear lane at the Location, Ateeq then went up the staircase at Nos 89-91 Oak Street and took a long copper pipe thereat.  Dl also walked up the staircase at Nos 89-91 Oak Street.  Then D2 carried some pipes away.

10.  In a cautioned video recorded interview on 9 April 2022, D1 stated, inter alia,the followings:

(a)  On 16 February 2022 at around 3:30 am, Dl was in Mongkok as he slept under the bridge. At the material times, D1 was just walking around alone.

(b)  The red-white-blue nylon bag, trolley and 19 copper pipes were not found on him, they were left by the unknown person.

(c)  D1 was not acquainted with Ateeq or the unknown person.

(d)  D2 asked D1 for a cigarette.

11.  In a cautioned video recorded interview on 5 June 2022, Ateeq stated, inter alia,the followings:

(a)  on 16 February 2022 at around 3:30 am, D2 was on his way to a subway as he was homeless;

(b)  D2 saw D1, whom he knew, and another male, and D2 asked Dl for a cigarette;and

(c)  D2 had no knowledge of the red-white-blue nylon bag or the plier.

12.  At the material times, D1 and Ateeq entered the Location as trespassers and stole therein.

A.2 DCCC 830/2023

13.  D1 pleaded guilty to Charges 1 to 3. D2 pleaded guilty to Charges 2 and 3:

Charge 1: Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. The particulars are that, on 4 April 2023, in Hong Kong, having entered as a trespasser a building known as a construction site of No 68 Gillies Avenue South, Hung Hom, Kowloon (the “Site”), stole therein 30 copper pipes.

Charge 2: Burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance. The particulars are that D1 and D2, on 24 April 2023, in Hong Kong, entered as a trespasser the Site with intent to steal therein.

Charge 3: Theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The particulars are that they, on 24 April 2023, at the Site, stole 7 rolls of electric wires, one bag and one trolley, property belonging to another.

14.  D1 and D2 admitted the following facts. At the material times:

(a)  Mr Lo Wai Tak (PW1)  was a clerk of Glorich Engineering Limited which was in charge of the Site;

(b)  construction work would take place between 8:00 am and 6:00 pm every Monday to Saturday;

(c)  inside the Site, there was a building surrounded by walls and covered by a roof (the “Building”);

(d)  on the Ground Floor of the Building, there was a temporary storage area surrounded by walls, covered by a roof and installed with a door (the “Storage Area”; see Photo 6);

(e)  30 copper pipes (the “Copper Pipes”)  valued about HK$30,000 were placed at the Storage Area;

(f)  there were three official entrances to the Site and a CCTV camera installed at each of the said entrance;

(g)  security guards would only be on duty during office hours;

(h)  an alarm system was set up so that if any of the CCTV camera was being interfered with, PW1 would be notified through his mobile phone; he could also watch the CCTV footage of the Site through his mobile phone; and

(i)  apart from the three official entrances, there was also a hole in one of the walls of the Building covered by a wooden board through which one could enter the Building (see Photos 1 and 2; the “Unofficial Entrance”).

A.2.1 The 1^st Incident on 4 April 2023 (Charge 1)

15.  At about 5:30 pm on 3 April 2023, when workers left the Site after work, the Copper Pipes were placed at the Storage Area.  However, when the workers returned to the Site on the next day, the Copper Pipes were missing.  Thus, PW1 checked the CCTV footage of the Site and discovered the followings:

(a)  At about 4:48 am on 4 April 2023, D1 was entering the area leading to the back door (ie one of the official entrances; see Photo 7)  of the Site (the “Area”).

(b)  At about 4:49 am, D1 was walking around the Area and searching for something. He then moved towards an area not captured by the CCTV camera facing the back door.

(c)  At about 4:53 am, D1 returned to the Area holding four of the Copper Pipes and then placed them in front of the back door.

(d)  Between 4:54 am and 4:58 am, D1 continued to bring more copper pipes to the back door.

(e)  Between 4:58 am and 4:59 am, D1 opened the back door and then took some of the copper pipes out of the Building;

(f)  At about 5:03 am, D1 returned to the Area through the back door and had in his hand a bag (the “Bag”). He then closed the back door, put the Bag on the floor and put on a pair of gloves. After that, he moved one of the copper pipes around and left the Area.

(g)  At about 5:06 am, D1 returned to the Area and walked towards the location of the CCTV camera. After a while, the CCTV camera was pushed upwards so that it could only capture the ceiling of the Area.

16.  PW1 confirmed that D1 was not employed to work at the Site and that D1 entered the Site as a trespasser. The case was reported to the police.

A.2.2 The 2^nd Incident on 24 April 2023 (Charges 2 and 3)

17.  At about 1:50 am on 24 April 2023, PW1 received a notification through his mobile phone that one of the CCTV cameras at the Site was being interfered with.  Thus, PW1 checked the CCTV footage of the Site and discovered the followings:

(a)  At about 1:38 am on the same day, someone pushed the CCTV camera to face the back door.

(b)  Between 1:38 am and 1:39 am, D1 and D2 opened the back door.

(c)  Afterwards, D1 and D2 were pushing a trolley (the “Trolley”)  with big bags and at least three rolls of electric wires on it out of the Building through the back door.

(d)  At about 1:40 am, after the Trolley had been out of the Building, one of the defendants grabbed another bag nearby, took it with him and closed the back door.

18.  Subsequent investigation at the Site revealed that:

(a)  for Charge 2, the defendants did not enter the Site through any of the official entrances; and the wooden board covering the Unofficial Entrance had been moved away; and

(b)  for Charge 3, at least four rolls of electric wires were stolen, each cost about HK$7,500; they were originally put under a gazebo placed in an open area at the Site; the Trolley taken by the defendants was also stolen from the Site.

19.  The case was subsequently reported to the police.

A.2.3 Arrest of the defendants

20.  At about 10:10 am on 24 April 2023, PC60181 (PW2)  conducted an investigation in the vicinity of Gillies Avenue South and discovered, through the CCTV footage of Chat Ma Mansion located at No 218 of Ma Tau Wai Road, that:

(a)  earlier at about 3:43 am on the same day, D1 and D2 were pushing the Trolley into Chat Ma Mansion;

(b)  at about 4:45 am, they left Chat Ma Mansion with the Trolley; and

(c)  the two then returned to Chat Ma Mansion at about 4:58 am on the same day.

21.  At about 5:30 pm on the same day, PW2 and PC10236 (PW3)  were on patrol outside Chat Ma Mansion when they saw D1 and D2 walking towards them.  As their appearances resembled those captured by the CCTV at the Site, PW2 and PW3 intercepted the defendants, revealed their police identity and demanded for D1’s and D2’s ID cards.  Since D1 claimed that his ID card had been left at home at Room 500, 1^st Floor of Chat Ma Mansion (the “Flat”), PW2 and PW3 brought both defendants to the Flat.

22.  At about 5:35 pm, PW2 and PW3 confirmed D1 and D2’s identities.  Having sought the consent of D1, PW1 entered the Flat where rolls of electric wires, some copper pipes and cover of these pipes were found. The Trolley was also left outside the Flat. PW1 and PW2 arrested D1 and D2 respectively for “Theft”.

A.2.4 Cautioned Interviews

23.  Between 11:02 pm on 24 April 2023 and 12:32 am on 25 April 2023 and between 12:34 am and 2:03 am on 25 April 2023, two cautioned interviews were conducted with D1 by PW2.  Under caution, D1 claimed that he stole things on 4 and 24 April 2023 at the Site as he had no money.

24.  Between 2:48 pm and 3:26 pm and between 3:36 pm and 4:31 pm on 25 April 2023, two video-recorded interviews were conducted by DPC24851 (PW4)  with D1.  Under caution, D1 admitted that:

(a)  at about 5:00 am on 4 April 2023, he took at least 18 copper pipes from the Site and sold the pipes for about HK$500 to HK$600 as he was running out of money;

(b)  at about 1:30 am on 24 April 2023, having entered the Building through the Unofficial Entrance, D1 and his friend were at the Site picking up electric wires;

(c)  they put all the electric wires onto the Trolley, about three of which were placed inside a nylon bag whilst four others were placed on the Trolley; they also put a white bag onto the Trolley; D1 and D2 then left the Site through a locked door and cut the lock together;

(d)  the stolen items, together with the Trolley, were left in the Flat;

(e)  D1 and D2 agreed to each share the stolen items by half;

(f)  D1 confirmed that the electric wires, copper pipes, the white bag, and the Trolley found at the Flat were all taken from the Site; and

(g)  the iron plier found at the Flat was used to cut open the back door of the Site.

25.  At about 10:00 pm on 24 April 2023, DPC9791 (PW5), together with other police officers, conducted a house search at the Flat in the presence of D1 and D2.  Under caution, D2 admitted that he stole the electric wires from the Site.

26.  Between 12:59 pm and 2:05 pm on 25 April 2023, a video-recorded interview was conducted by PW5 with D2.  Under caution, D2 admitted that:

(a)  he, together with D1, entered the Building through the Unofficial Entrance;

(b)  they stole electric wires, a trolley, and a white nylon bag from the Site;

(c)  they left the Site through the back door which was originally locked; and

(d)  after they had left, they brought all the stolen items to D1’s flat; D1 planned to sell all the stolen items and D2 would take half of the proceeds.

A.2.5 Conclusion

27.  On 4 April 2023, D1, having entered the Building as a trespasser, stole 30 copper pipes therein (Charge 1).

28.  On 24 April 2023:

(a)  D1 and D2 entered the Building as a trespasser with intent to steal therein (Charge 2); and

(b)  they stole 7 rolls of electric wires, one bag and one trolley, all being property belonging to another, at the Site (Charge 3).

B. MITIGATION

B.1 D1

29.  D1 has a clear record.  Mr Whitehouse submitted that D1 is aged 36 and single.  He came to Hong Kong in 1997.  D1 was a part-time casual labour but he became unemployed because of the COVID outbreak, as a result of which he committed these cases.  D1’s mitigating letter was submitted.

30.  Mr Whitehouse acknowledged that the sentencing guideline for the offence of burglary is 2.5 years’ imprisonment, but nevertheless suggested a starting point of 2 years for each of the burglary charges in both cases because no damage was done, nobody was threatened and the property stolen was not of high value or with sentimental attachment.  He also proposed a starting point of 1 year for Charge 3 of theft in DCCC 830/2023.

31.  Mr Whitehouse accepted that it is an aggravating factor that Charges 2 and 3 of DCCC 830/2023 were committed whilst on bail of DCCC 900/2022, but argued that the sentences for these two charges should run concurrently.

B.2 D2 in DCCC 830/2023

32.  D2 has a previous record of shoplifting for which he was sentenced to 2 weeks’ imprisonment.  Mr Hemmings submitted that D2 is aged 31, single without dependent, and was unemployed at the material times.

33.  Mr Hemmings agreed that the fact that D2 committed Charges 2 and 3 under a joint enterprise with D1 is an aggravating factor, but nevertheless asked the court to adopt a starting point of 2 years’ imprisonment because the offences were not well-planned and D2 ended up empty-handed.

C. SENTENCE

C.1 DCCC 900/2022

34.  Regarding DCCC 900/2022, there is no reason for departing from the sentencing guideline.  Meanwhile, D1 committed the offence with Ateeq and this is an aggravating factor for which the sentence is enhanced by 3 months to 33 months’ imprisonment.  It is reduced by 1/3 for D1’s guilty plea, the only mitigating factor, to 22 months’ imprisonment.

C.2 DCCC 830/2023

C.2.1 D1

35.  Regarding DCCC 830/2023, for D1, I adopt a starting point of 30 months’ imprisonment for Charges 1 and 2 of burglary, and one of 12 months’ imprisonment for Charge 3.

36.  The sentence for Charge 2 is enhanced by 3 months to 33 months because of joint enterprise.

37.  The sentences for Charges 2 and 3 are enhanced by 3 months to 36 months and 15 months respectively because they were committed whilst D1 was on bail for DCCC 900/2022.

38.  The sentences for Charges 1, 2 and 3 are reduced by 1/3 for D1’s guilty plea, the only mitigating factor, to 20 months’, 24 months’ and 10 months’ imprisonment respectively.

39.  The sentences for Charges 2 and 3 are to run concurrently.  Thus the total sentence for the two charges is 24 months’ imprisonment.

40.  Having considered totality, I am of the view that a global sentence of 32 months’ imprisonment is appropriate for all charges of D1.  Thus, 8 months of the sentence for Charge 1 are to run consecutively to the sentences for Charges 2 and 3.  Thus, the total sentence for D1 in DCCC 830/2023 is 32 months’ imprisonment.

C.2.2 D2

41.  For D2, I adopt a starting point of 30 months’ imprisonment for Charge 2 and one of 12 months’ imprisonment for Charge 3.

42.  The sentence for Charge 2 is enhanced by 3 months to 33 months because of joint enterprise.

43.  The sentences for Charges 2 and 3 are reduced by 1/3 for D2’s guilty plea, the only mitigating factor, to 22 months’ and 8 months’ imprisonment respectively.  The sentences for these two charges are to run concurrently.  Thus the total sentence for D2 is 22 months’ imprisonment.

44.  Accordingly, D2 is sentenced to 22 months’ imprisonment for DCCC 830/2023.

C.2.3. Totality for D1

45.  Having considered totality, I am of the view that a global sentence of 42 months’ imprisonment is appropriate for the two cases of D1.  Hence, I order that 10 months of the sentence for DCCC 900/2022 is to run consecutively to the sentence for DCCC 830/2023, resulting in a total of 42 months’ imprisonment for D1 for both cases.