HKSAR v. REHMAN MUGHAL ZIA UR

DCCC 549/2022

[2023] HKDC 397

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 549 OF 2022

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Reasons for Sentence

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1.  Originally, the Defendant, a Form 8 holder was charged with one count of burglary. Upon plea bargain, the Prosecution amended the charge sheet by adding an alternative charge of criminal damage. The Defendant pleaded guilty to the alternative charge, and was convicted accordingly.

Brief Facts

2.  At about 4 pm on 3 March 2022, PW1 Tso, owner of Flat A12, 16/F, Mirador Mansion, Nathan Road, Tsim Sha Tsui, saw the Defendant attempting to pull out one of the metal tubes or bars which were part of the outside gate of the said flat. It was later seen that the Defendant had pulled out 2 of the tubes or bars of the grill of the outside gate. 

3.  PW1 Tso called for the assistance of a security guard and the Defendant was detained in the guardhouse of the building.  The Defendant was later arrested by a police officer. When questioned, the Defendant admitted that he caused damage to the grill of the outside door of the said flat.  The estimated cost of repair was about $3,000.

Mitigation

4.  It was submitted that the Defendant, aged 42, is a single man from Pakistan.  He came to Hong Kong legally in 2009 and is claiming refugee status, hence a Form 8 holder. 

5.  The Defendant has been in custody since his arrest in March last year.  The Defence stated that the Defendant was released from prison on 19 February 2022 and transferred to CIC but got released from CIC almost immediately. 

6.  It was submitted that the said Flat A12 was leased to the Defendant’s acquaintance who was also a Form 8 holder from Pakistan, nicknamed Moon.  The address was the address the Defendant gave to the Immigration Department when he was released from CIC. 

7.  The Defendant also knew the alleged victim Maral (PW2), a Form 8 holder from Mongolia.  The Defendant claimed that he had visited and socialized with both PW1 and PW2 at the said flat. 

8.  There were certain allegations against PW2. It was claimed that the Defendant had all his property, including his mobile phone and the Form 8 document, being locked inside the room.  The Defendant got agitated when he could not re-enter the said flat.  Hence, the Defendant pulled the tubes or bars of the gate with a view to enter the flat.  The Defendant made no attempt to run away. 

9.  The Defence submitted that the Defendant has been remanded for nearly one year and urged the Court to impose a lenient sentence so that the Defendant can be released as soon as possible. 

Sentence

10.  The Defendant, aged 42, was born in Pakistan.  He received secondary education in Pakistan, and came to Hong Kong legally in 2009.  He becomes a Form 8 holder since then. The Defendant had a total of 9 convictions since June 2011, some of them related to possession of dangerous drugs.  He had one similar conviction of criminal damage back in September 2016, for which he was sentenced to 4 months’ imprisonment. 

11.  This Court is in no position to investigate or enquire about the grudges and/or relations between the Defendant and the other 2 Form 8 holders.  The Defendant might have a reason to get angry when he could not gain entry into the said flat.  But the fact is the Defendant did damage the gate of the flat hence the basis of the criminal damage.  There is no evidence to suggest that the Defendant used any tool to damage the gate.  He did it with his bare hands. 

12.  On the other hand, I do not think the Defendant has any financial means to compensate the flat owner. Hence the Court will not impose a compensation order. 

13.  It is said by the Court of Appeal in various cases that usually a Form 8 holder would expect his sentence enhanced when he committed an offence in Hong Kong.  The Defendant has a few convictions.

14.  Taking all the circumstances into account, I would adopt a starting point of 6 months.  Given the fact that this is the result of plea bargaining, I would give a full one-third discount in sentence and reduce the sentence to 4 months. I will enhance the sentence by one month, making it a total of 5 months’ imprisonment which, in my view and as far as this criminal case is concerned, will still enable his immediate release from prison.