HKSAR v. MOHAMMAD MURSALEEN

DCCC 661/2020

[2021] HKDC 403

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 661 OF 2020

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". He burgled a grocery store and tried to remove a safe from the shop.

Summary of Facts

2.  The premises particularized in the Charge ("the Store") are situated at Ground Floor, Tak Yue Mansion, Nos.372-378 Shanghai Street, Kowloon ("the Building").  The Store was operated as a supermarket.

3.  About 10:00 p.m. on 16 April 2020, a staff member of the Store (PW1 Madam Sin) closed up for the day.  She confirmed that the safe, which was placed underneath the cashier counter, contained cash in the sum of $36,000.  She locked both the front and rear entrances before she left. 

4.  About 6:25 a.m. on 17 April 2020, the manager of the Store (PW2 Mr. Chan) was notified that the anti-theft alarm at the rear entrance had been triggered.  He then checked the CCTV footage of the Store via his cell phone, which was connected to the Store's CCTV system.

5.  The CCTV footage revealed that a male with dark complexion wearing a black cap, a black hoodie with yellow lining, blue dungarees, a blue surgical mask, black sneakers and red gloves ("the Intruder") was in the Store.  He pulled out the safe from the cashier counter and pushed it towards the rear entrance.  PW2 immediately alerted the Police.

6.  Police officers arrived at the Store around 6:35 a.m. on the same day.  They cordoned off both its front and rear entrances.

7.  PC 11661 (PW3) soon noticed a male in a black top and dark trousers ("the Suspect") climbing on a ladder from the foyer at the rear entrance of the Store to the 1^st Floor of the Building.  PW3 ordered the Suspect to stop but he did not comply.  The Police then cordoned off the vicinity to search for the Suspect.

8.  About 6:55 in the same morning, a male (later identified as the defendant) who was in clothes different from those worn by the Intruder was seen leaving the Building. Since the defendant was acting furtively and covered with dirt, PC 7716 (PW4) intercepted him for enquiries.  The defendant replied in fluent Punti claiming that he was looking for a friend residing on the 11^th Floor.  The results of police enquiries with the residents on the 11^th Floor of the Building contradicted the defendant's claim.

9.  Meanwhile, the Police found a pair of red gloves, a black cap, a blue surgical mask and a black surgical mask in a rubbish bin placed at the staircase on the 8^th Floor of the Building.  A black hoodie with yellow lining was also found outside a flat on the 8^th Floor.

10.  PW3 soon arrested the defendant.  Under caution, he claimed that he had only acted as a lookout; it was his partner who prized open the door of the Store and burgled the Store.

11.  About 7:30 a.m. on the same day, PW1 returned to the Store.  She found the rear entrance of the Store having been prized open.  The safe had been moved onto a trolley placed outside the rear entrance.  The $36,000 cash contained in the safe remained intact.  The repair costs of the Store including its rear entrance amounted to about $10,000.

12.  The items found in the rubbish bin on the 8^th Floor of the Building were submitted to the Government Laboratory for examination.  The DNA sample lifted from the blue surgical mask was found matching with the defendant's. 

Mitigation & Sentence

13.  The defendant is 42 and single. He is a Pakistani born and raised in Hong Kong. He has 24 conviction records, which included 5 "Theft" offences and 1 "Burglary" offence. Defence counsel Mr. Percy informed me that the defendant was last discharged from prison around November 2019. He then worked as a casual renovation worker earning about $20,000 per month.

14.  In mitigation, Mr. Percy submitted that upon being apprehended by PW4, the defendant did not try to escape or put up a struggle. He made some admissions under caution, though it is now confirmed by both parties that the defendant was the only culprit who burgled the Store. Furthermore, Mr. Percy stressed that the safe was not damaged and the cash contained inside was untouched. The only loss suffered by the Store was the damaged rear entrance.

15.  The defendant's criminal record is appalling, but I accept that he has not reached the "repeated offender" category in terms of "Burglary". On the other hand, he is no stranger to offences related to "Theft" or dishonesty. For his previous "Burglary" offence, the defendant was sentenced to 20 months' imprisonment in February 2019. In just 14 months, he committed his 2^nd "Burglary" offence.

16.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Mr. Percy submitted that the present burglary was an amateurish job. I cannot say I completely agree with him. The defendant might not have been successful in stealing what he intended to steal, he clearly had an escape plan by being able to change into different clothes shortly after leaving the Store. Some degree of deterrence is required to create an impact on him.

17.  I consider a starting point of 33 months' imprisonment appropriate and just for the present charge. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 22 months' imprisonment.

18.  The defendant committed his first offence at the age of 12. He has been in trouble with the law almost continuously since. The court can only do so much in deterring a recidivist by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.