HKSAR v. ZARSHAD

DCCC 201 & 271/2017
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 201 & 271 OF 2017

-------------------------

-------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  There are two defendants in this case. They face a joint charge of burglary (charge 1), contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. D1 also faces on additional charge of burglary (charge 2).

2.  When the trial commenced, both D1 and D2 pleaded not guilty to their respective charge(s).

3.  The trial then proceeded and on the second day of the trial, D1 intimated to the court that he intended to plead guilty to both charges.  He also expressed his intention to be a defence witness for D2’s trial.

4.  After plea bargaining between the parties, D1 pleaded guilty to an amended charge 1 and charge 2.  Prosecution would offer no further evidence against D2 for charge 1. Charge 1 against D2 is so dismissed.

5.  The particulars of the charges are as follows: -

Charge 1: D1 and another, on the 6 December 2016, having entered as trespassers part of a building known as 8^th floor (rooftop), No 22 Hamilton Street, Yau Ma Tei, Kowloon, stole from within one electric saw.

Charge 2: D1, on a day unknown between the 12 November 2016 and 16 November 2016, both dates inclusive, having entered as a trespasser part of a building known as 6^th floor, No 373 Ki Lung Street, Sham Shui Po, Kowloon, stole therein 10 vases.

THE FACTS

Charge 1

6.  On 6 December 2016, PC 6802 and PC 11331 were in an anti-burglary patrol in plainclothes in Yau Ma Tei area. At around 1540 hours, PC 11331 informed PC 6802 that he saw D1 (pulling a black suitcase) and another (“X”) walking in a hasty pace along Hamilton Street.  At the time, D1 and X were walking side by side.  PC 6802 and PC 11331 put them under observation and saw both D1 (pulling the black suitcase) and X entering a tenement building at No 22 Hamilton Street, Yau Ma Tei, Kowloon (“The Building”).  At the same time assistance from other police officers were sought.

7.  On the same day, at around 1545 hours, PC 6802 and PC 11331 entered the Building and upon reaching the landing between 4/F and 5/F staircase, they observed D1, who was seen to be wearing a pair of gloves and ready to put an electric saw into the black suitcase, and X who was seen to be assisting D1 in pressing closed the said suitcase.  Upon PC 6802 saying loudly “police”, D1 immediately placed the electric saw into a white plastic bucket.  A torch, a screwdriver, and a multiple-purpose knife were found in D1’s right jacket pocket.

8.  Enquires by the police revealed that the electric saw belonged to Madam Wong Nim Yu who was the owner of the flat on the rear block of the 7^th Floor and the rooftop on 8^th Floor of the Building.  The electric saw was placed in the storeroom on the 8^th Floor (rooftop).

9.  Meanwhile, rolls of electric wires, a box with two door locks, two buckets and a bag containing some construction materials were found scattered at the landing between the 5/F and 6/F staircase of the Building.

10.  At 1630 hours, PC 6802 and PC 11331 declared arrest in Punti dialect on D1 and X respectively for the offence of burglary.

11.  At the material time, D1 and X having entered as trespassers part of the building known as 8^th (rooftop), No 22 Hamilton Street, Yau Ma Tei, Kowloon, stole the electric saw therein.

Charge 2

12.  On 15 November 2016, at about 2200 hours, a passerby noticed that the wooden main door of 6^th Floor, No 373 Ki Lung Street, Sham Shui Po, Kowloon (a domestic premises used as a storeroom with no residents, hereinafter referred to as “The Flat”) was pried open.  A report was made to the police. The owner of the Flat, Mr. Ki Ping Ki, determined that 10 antique vases (worth HK$20,000 in total) had been stolen from the Flat.

13.  On 16 November 2016, fingerprints on the inner area near the door handle of the wooden main door of the Flat were located and lifted by Sergeant 1133 of the Identification Bureau.  Subsequent analysis confirmed those fingerprints were from the “Left Fore Finger, Left Middle Finger, Left Ring Finger” of D1.

14.  Mr. Ki Ping Ki confirmed that no one had been living at the Flat for 10 years, he did not know D1 and had never permitted D1 to enter the Flat.

15.  D1 was arrested on 28 February 2017 for the offence of burglary.

16.  At the material time, D1 having entered as a trespasser part of the building known as 6^th Floor, no 373 Ki Lung Street, Sham Shui Po, Kowloon, stole the 10 vases therein.

PREVIOUS CONVICTION

17.  D1 has 2 previous convictions.  They related to theft and possession of dangerous drugs dated back in Jan 2016 and March 2017 respectively. He was last sentenced to DATC.

MITIGATION

18.  D1 is 36 years of age. He is married with a Filipino wife working in Hong Kong. They have a daughter resides in the Philippines. D1’s mother, who is 57 years old, lives in Pakistan. D1 resides with his elder brother in Hong Kong.

19.  D1 was born in Pakistan. He came to Hong Kong at the age of 11. He has been a Hong Kong resident since 1993. He was a construction worker before but was unemployed for one year. He became a scavenger and resold any items of value he found in the street. D1 committed the present offences to sustain himself.  He is remorseful and is willing to compensate to victim in charge 2 for $20,000 for his lost vases.

20.  D1 claimed that he has urination and respiratory problem. He received treatment whilst he is in custody.

SENTENCING GUIDELINES

21.  The maximum sentence on conviction upon indictment for the offence of burglary is that of imprisonment for 14 years.

22.  The Court of Appeal had, in R v Wong Man Cr App 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988, laid down guidelines for sentence in case of burglary of non-domestic and domestic premises where the defendant is a first offender of full age.  The court set the respective starting points at 2 ½ years’ and 3 years’ imprisonment.

23.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find, as in HKSAR v Sim Ka Wing CACC 450/2000. 

CONSIDERATIONS

Charge 1

24.  The defence pointed out that the offence in charge 1 was committed in the common area of residential building. There is no evidence that D1 intended to break into any units to steal. His intention all along was to get something from the storeroom on the 8/F. The door of the storeroom was closed but had already been pried open by somebody beforehand. D1 took the opportunity and removed the electric saw from the storeroom for resell purpose. D1 claimed through his counsel that the saw can be sold for $100 the most.

25.  The defence relied on HKSAR v Suen Chi Wai[2015] 5 HKLRD 33 and submitted D1 should be sentenced on the basis that the roof top being the common part of the Building. In Suen Chi Wai , the defendant had entered the common parts of a domestic building and had removed some copper strips from grounding wire, and the Court of Appeal  determined that a proper starting point for sentence for that offence was one of 30 months’ imprisonment.

26.  According to D1, the lock of the storeroom had already been pried opened when he arrived on the 8/F. He just opened the door of the storeroom and took away the electric saw. I do not lose sight that the defendant was carrying a number of items with him in his jacket which can be used in connection with burglary, yet there is no evidence to prove or rebut D1’s allegation. That being the case, the benefit of the doubt must be given to the defendant and I therefore find that it was an opportunistic burglary in the common area of a building.

27.  I have checked the state of the electric saw.  It is not brand new. However, it is still of some value other than $100 as alleged by the defendant.  

28.  All in all, I adopt the starting point for burglary in the common part of a domestic building of 30 months’ imprisonment in the circumstances. I reduce and discount the sentence by a further 3 months in recognition of its opportunistic character. Thus the starting point is 27 months.

29.  However, I find that there is one aggravating factor in this charge, which is D1’s committed the crime with an accomplice, X. I find that the starting point needs to be increased to take into account this aggravating factor. I do so by increasing it by 3 months to 30 months.

Charge 2

30.  Charge 2 took place in a residential building as well.  According to D1, the door of the Flat was left ajar.  D2 took the opportunity to go in to see if there was anything worth taking. The defence again urged the court to accept it is an opportunistic crime. The prosecution fairly pointed out that the nobody resides in the Flat for ten years.  It has been using as a store room.  

31.  Charge 2 relies on D1’s fingerprints evidence found inside the Flat. There is no eye witness to see how the incident took place. Again, there is no evidence to prove or rebut D1’s allegation that the door of the Flat was left opened, that being the case, the benefit of the doubt must be given to the defendant and I therefore find that it was an opportunistic burglary.

32.  From the photographs showing the Flat in charge 2, they showed it was packed with boxes and plastic bags.  It is messy and tallies with the fact that the flat is not being resided by anybody.  I find that the mischief consists of the invasion of the premises is lacking in the present situation.  Since nobody lives in the Flat in charge 2, it will not invade the privacy and security of the tenants’ homes, leaving them with a sense of violation and insecurity.  I take the point that D1’s involvement in this case was simply to enter the opened flat. I agree with counsel for D2 that the present case is closer to an opportunistic crime in nature.

33.  I find that an appropriate starting point is is 2 years and 3 months. Originally D1 is willing to compensate $20,000 to the victim in Charge 2. The money is to be deducted from his bail money. However, he changed his mind today and told the court that the money had to be repaid to his brother. He can only repay the victim after he is released from prison.  In such a situation, a mere offer to make restitution by an accused who has no money to back it up will not assist in his mitigation: HKSAR v Chan Kin CACC 126/2005. The sentence remains to be 27 months with no further deduction.

DISCOUNT & TOTALITY

34.  D1 changed his plea to guilty on the second day of the trial.  I have considered HKSAR v Ngo Van Nam CACC 418/2014, the revised discount of sentence for pleas of guilty should apply in this case.

35.  For pleas of guilty made during the trial itself (after the first day of trial), the discount would usually be less than 20%.  The actual discount will reflect the circumstances in which the plea was tendered.

36.  In the present case, I would adopt a 20% discount on D1 tendered up his plea of guilty on the second day of trial.

37.  For Charge 1, I adopt a starting point of 30 months.  Therefore, the sentence is reduced to 24 months’ imprisonment upon his plea.

38.  For Charge 2, I adopt a starting point of 27 months.  After deduction for his plea of guilty, that leads to a sentence of 21 months’ imprisonment for this charge.

39.  I take the totality principle into account.  I order that 4 months of Charge 2 be served consecutively to Charge 1.  Therefore, the total term is 28 months’ imprisonment.