HKSAR v. MAHMOOD AZHAR

DCCC 800/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 800 OF 2015

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

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

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

Reasons for Sentence

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

1.  The defendant pleaded not guilty, but was convicted after trial of one charge of burglary.

2.  He pleaded not guilty to what was a hopeless case.  The evidence was so strong, Mr Parry did well to defend the defendant as he did.  I will not repeat the facts.  I gave full details in my verdict.

3.  That morning, the police were on patrol because of a spate of burglaries in that area targeting shops under renovation.  Such shops are easy targets, often easy to break into and the tools and materials can be resold quickly and for profit.

4.  PW1’s evidence is that when she saw the defendant she became suspicious.  It was 4 am and he was pushing a trolley with a bag on it.  Her suspicions were very accurate.  She followed the defendant and saw him sell the items to a recycling shop for $500.  When he left the shop, she followed him to a park under a flyover nearby.  She went back to the shop to confirm her suspicions, and then with the assistance of colleagues, she went back to locate the defendant.  All this took place in a matter of minutes.

5.  She found the defendant near where she last saw him and apprehended him.  She did question him and he did tell her that he had just sold metal to a shop.  I am sure her identification evidence was strong and reliable.  The defendant was wearing distinctive clothing as well as sporting a distinctive hairstyle.  That is clear from the photographs and the CCTV footage.

6.  The CCTV footage is of the defendant entering the shop by the front door and leaving it minutes later by the back door.  He enters empty-handed, but leaves with a trolley and some stolen items.  At one point, when he is making sure no one watches him enter the shop, he looks towards the camera and I can see for myself that the defendant in the dock is the same man entering the shop.  He is literally filmed committing this offence.

7.  To add to this evidence is PW1’s evidence of him with the stolen items going to sell them within a very short period of time.  The value of the items was estimated to be about $2,500 and he gained $500.

8.  The defendant is a 34-year-old asylum seeker from Pakistan.  He has been here for nine years.  In 2012, he married in Hong Kong.

9.  The defendant is not a man with a clear record.  His notable convictions are two for theft in 2011, where he was fined $300 for one offence and sentenced to 3 months’ imprisonment for another.

10.  He has no previous convictions for burglary.

11.  Mr Parry said all he can on behalf of the defendant in mitigation.

12.  Normally, a burglary of a non-domestic premise will attract a starting point of 2 years and 6 months where there are no aggravating or mitigating factors.  Here, the defendant is an asylum seeker and by committing offences in Hong Kong is abusing the hospitality of Hong Kong society and public.  It has been said to be an aggravating factor.  I refer to HKSAR v Sandagdorj Altankhuyag and another, CACC 45/2013 and HKSAR v Norena Gutierrez Cristhian Andres, CACC 319/2014.  However, in this case I will not increase the starting point for this factor, but the defendant should be pre-warned that if he commits any further offences, this may be considered relevant.

13.  Now, I find the starting point of 2 years and 6 months appropriate.  The defendant has been convicted after trial and I see no further reason to reduce that starting point.

14.  Therefore, the defendant is sentenced for this offence to 2 years and 6 months’ imprisonment.