HKSAR v. SADAWER HUSSAIN

DCCC 238/2024

[2025] HKDC 657

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 238 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea of one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap. 210 and one count of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance, Cap. 221.

Facts

Charge 1

2.  The facts admitted by the defendant reveal that Mr. Tse (PW1)  resided on the 8^th level (7/F)  and rooftop of the tenement house at 80 Apliu Street, Sham Shui Po.  He occupied the rooftop while his nephew occupied Tong 8/F.  Mr Lee (PW2)  resided on the rooftop of 78 Apliu Street, Sham Shui Po.  Rooftop 78 and rooftop 80 are connected.

3.  On 8 October 2023 at about 2300 hours, PW1 placed his wallet inside the left front pocket of a pair of shorts which he placed together with a navy patterned bag on the sofa inside rooftop 80.  He retired to bed.

4.  On 9 October 2023 at about 0930 hours, PW2 heard noises in the area of rooftops 78 and 80.  He went to the door and saw the defendant on the rooftops looking around where tires were placed.  PW2 took a video of the defendant.  PW2 told the defendant to leave, but the defendant claimed that there was no way out and asked PW2 to open the door for him to leave.  PW2 asked the defendant to leave via the route he entered the rooftop.  The defendant walked towards rooftop 80.

5.  After the defendant left, PW2 immediately informed PW1 and PW1’s nephew.  Upon waking at around 1100 hours PW1 found his wallet missing and informed his nephew.  PW1 found his bag in the area of rooftop 80. 

6.  PW1 lost a wallet (value: HK$20), an elderly octopus card (value: HK$500), a JoyYou card (value: HK$50), his identity card, mainland travel permit and HK$1,000 cash.

7.  At 1640 hours on 9 October 2023, PC 16483 intercepted the defendant on Guilin Street near Apliu Street.  The defendant was holding 2 pink plastic bags.  Upon preliminary body search, police found a red screwdriver and a spanner amongst other items in one of the plastic bags.  At around 1644 hours, PC 16483 arrested the defendant.

8.  On 10 October 2023, police officer conducted a video recorded interview (“VRI”)  with the defendant with the assistance of an English - Cantonese interpreter and an English - Urdu interpreter.  The defendant admitted under caution that he was the person captured in PW2’s video, and that he was at the material location but did not reside at the location.

9.  The defendant was a Pakistani.  He has been granted Form 8 Recognizance since 17 December 2019.

Charge 2

10.  The defendant was granted bail in the Magistrates’ Court on 18 October 2023.  He failed to appear in the District Court for mention as appointed on 19 March 2024.  The defendant was arrested on 11 May 2024, under caution he claimed that he could not find the building.

11.  At all material times, the defendant entered rooftop 80 as a trespasser.  He stole a wallet, an elderly octopus card, a JoyYou card, an identity card, a mainland travel permit and HK$1,000 cash (Charge 1).

12.  At all material times, the defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody as should have been appointed by a court (Charge 2).

Previous Convictions

13.  The defendant is of clear record.

Antecedents, Personal Background and Mitigation

14.  The defendant is 37 years of age.  He was born in Pakistan.  He arrived in Hong Kong and was released on his own recognizance in 2019.

15.  The defence cited authorities including HKSAR v Pinto [2024] HKCA 1164 and HKSAR v Lo Kam Fai CACC 374/2014.

Sentencing Consideration

16.  Burglary is a serious offence which carries a maximum imprisonment term of 14 years.  The sentencing guidelines for the offence of burglary provided that burglary of a domestic premises would attract a sentence of 3 years’ imprisonment after trial, even if the offender was of clear record and in the absence of any aggravating factors.  The burglary of a non-domestic premises would usually attract a starting point of 30 months’ imprisonment.

17.  The authority of HKSAR v Cheng Wai Kai [2008] HKCA 226 set out factors that could be considered as aggravating for which sentence would be increased at the starting point.  The aggravating factors included: (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument 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 conviction of similar nature, and (6)  the offender commits multiple offences.

18.  The defence agreed that the present case involved the trespass onto rooftop 80 which was part of a private property, and was occupied by PW1 and PW2 at the time of the burglary.  The facts of the case support rooftops 78 and 80 were part of a domestic premise.  I adopt a starting point of 36 months.

19.  There was no evidence to suggest the use of weapons, however the defendant’s presence at the material rooftop did wake PW2 from his sleep.  PW2 would no doubt have been startled and alarmed to find the defendant on his domestic premise in the early morning hours.  The encounter led to a confrontation between the defendant and PW2.

20.  The properties stolen included PW1’s identity card and mainland travel permit.  The reckless disposal of such important personal identity documents could lead to serious consequences and/or loss to PW1.

21.  The defendant was a Form 8 holder released on his own recognizance at the time of the offence.  The court considered it “a grave concern” that defendants who were permitted to remain in Hong Kong as non-refoulement claimants should commit a burglary of any premises [see Pinto].  I consider this an aggravating factor for which an enhancement in sentence is appropriate.  I enhance the starting point by 3 months.

22.  I adopt a starting point of 39 months’ imprisonment for charge 1.

23.  Charge 2 involved the abscondment of the defendant.  He was granted bail on 18 October 2023 but failed to appear in the District Court hearing on 19 March 2024.  He was subsequently re-arrested by the police on 11 May 2024.

24.  The defendant claimed upon re-arrest that “he could not find the building”.  I did not accept the defendant’s explanation and indicated the court’s view to the defence.  The defendant had been in Hong Kong since 2019, even if he did not know the location of the District Court, he could have made enquiries with his legal representatives, the police or by contacting the Court.  The defendant made no attempt to contact the court or his legal representatives after his failure to attend court.  His actions or lack of reflected his intention to abscond rather than a failure to locate the law court building.

25.  On the issue of the applicable deduction of sentence for the defendant’s guilty plea to charge 1, the defence agreed that the defendant was not entitled to a full one third deduction for charge 1, and that the sentences for charges 1 and 2 would normally be ordered to run consecutively.

26.  The defendant pleaded guilty to charge 1, under normal circumstance he would be entitled to a full one third deduction to the starting point of 39 months’ imprisonment.  By absconding, the defendant had rendered the administration of justice more costly and more time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtained [see HKSAR v Ko Chun Hung [2007] HKCA 490].

27.  The defendant absconded for a relatively short duration.  He failed to surrender himself and eventually was re-arrested by the police.  I consider one-fourth deduction of his sentence to be appropriate.  Therefore I sentence the defendant to 29 months’ imprisonment for charge 1.

28.  I adopt a sentence of 6 months’ imprisonment for charge 2 and allow for a one-third deduction to reflect his guilty plea.  The defendant is sentenced to 4 months’ imprisonment for charge 2.

29.  The 2 charges are separate and distinct in terms of the nature of the offences, the date, location and the circumstances of their commission, as such the sentences should be served wholly consecutively.  I have considered the principle of totality.  I order 4 months’ imprisonment term of charge 2 be served consecutively to the 29 months’ imprisonment imposed on charge 1.  I order a total sentence of 33 months’ imprisonment for charges 1 and 2.