HKSAR v. ZAB SHAH

DCCC 644/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 644 OF 2015

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REASONS FOR SENTENCE
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1.  Zab Shah you have pleaded guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance.[1]

Charge 1

2.  Full details of the offences are set out in the facts admitted by you today.  In summary between 9:00 p.m. on 1 March and 11:00 a.m. on 3 March this year you burgled a Sri Lankan food shop in Tsim Sha Tsui.  The iron gate and the main door had been prized open.  You stole a cash register and $4,000 cash.  You admitted the burglary when interviewed by the police in June. 

Charge 2

3.  Between 10:00 p.m. on 1 March and 12:30 p.m. on 2 March you burgled a tattoo shop in Tsim Sha Tsui.  The back door had been prized open, the lock broken and the storeroom ransacked.  Your fingerprints were found on a cash box which was kept in a wardrobe in the storeroom.  Nothing was found missing. 

Charge 3

4.  In the afternoon of the 8 June you burgled residential premises on the Rooftop of Meilan Building, No.88 Portland Street in Yaumatei.   The premises comprised of a hut with balcony enclosed by a barrier, metal wire fence and metal gate.  Photographs have been produced in court showing the premises.

5.  The police arrested you as you climbed over the metal wire fence.  Inside your rucksack the police found a jade pendant necklace and an iPad mini, which Mr Chan, who lives in the hut, confirmed had been stolen in the burglary.  By the fence the police also recovered four toy guns and some pellets, which had also been stolen in the burglary.  The police also found a torch; two pairs of metal pliers and an electric cutter in your rucksack. 

6.  In passing sentence I have carefully considered the written submission of Mr Booth and everything said on your behalf by Mr Booth today.  I note you arrived in Hong Kong in 2007 and claimed asylum.  Your application is apparently still pending.  I take into account you have no previous convictions for burglary or for offences of dishonesty. 

7.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment and for residential premises is 3 years imprisonment.

8.  All three offences were committed whilst you were on bail for the burglary in DCCC 288 & 298/2015.  Commission of offences on bail is a seriously aggravating factor for which the starting point on each charge is to be increased by 6 months imprisonment, [2] resulting in starting points of 3 years and 3 years and 6 months imprisonment.  Giving you full credit for your pleas of guilty the sentences are reduced to 2 years imprisonment on charges 1 & 2 and 2 years and 4 months imprisonment on charge 3.

Totality

9.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle.[3]

10.  The burglaries were committed against three different victims, albeit the two shop burglaries may have been committed on the same night.  The burglaries were clearly planned and not opportunistic burglaries as can be seen by the way entry was gained to the shops and the hut.  The doors of both shops had been prized open and you were found in possession of breaking tools when you were arrested leaving the hut. 

11.  You also knew what you were looking for having stolen the cash machine from the Sri Lankan food shop and your fingerprints found on the cash box in the tattoo shop, although nothing was found missing from the tattoo shop.  The value of the items stolen from the hut was over $15,000.  I reject the burglaries were opportunistic burglaries.[4]

12.  Taking into account all the circumstances of the three burglaries, I am satisfied that a total sentence of 2 years and 8 months imprisonment is appropriate, which I am satisfied properly reflects your criminality on the three charges.

Sentence

13.  You are convicted and sentenced as follows:

Charge 3 – 2 years and 4 months imprisonment;

Charges 1 & 2 – 2 years imprisonment concurrent on each charge with 4 months consecutive and 20 months concurrent to charge 3.

Total sentence is 2 years and 8 months imprisonment.

14.  These three burglaries are entirely separate and distinct from the burglary in DCCC 288 & 298/2015.  I am satisfied taking a global view of the total sentence for the whole of your criminal conduct, a total sentence of 3 years and 4 months imprisonment is appropriate.

15.  I order 8 months of the sentence in DCCC 288 & 298/2015 to be served consecutive and 14 months concurrent to the sentence imposed on charges 1-3. 

[1] Cap 210

[2] See HKSAR v Leung Ting Fung & another [2015] 1 HKC 290.

[3] See Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Leung Ting Fung & another.

[4] See §12(iii) of the written submission of Mr Booth.