HKSAR v. ISLAM MOHAMMAD KHAIRUL

DCCC 808/2022

[2023] HKDC 469

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 808 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a single charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant. In gist the offence took place in a single-storey metal hut (hereinafter called “the Metal Hut”)  surrounded by 2-meter-tall mesh wire fence which had two entrances with locks.

3.  The defendant having entered as a trespasser of the Metal Hut stole therein three bundles of copper wire and one bag.

4.  At the material time, Mr Wong had rented the Metal Hut for over 20 years, which was previously his brother-in-law’s residence but was now mainly used for storage of some metal scrap and electrical wire. There was a patio therein with only some mesh wire covering the roof top. Mr Wong would return to the Metal Hut regularly.

5.  On 9 May 2022, Mr Wong returned to the Metal Hut and noticed that the wooden door of a store room was tampered with. Upon checking, he discovered that three bundles of copper wire (with a total value of HK$10,000)  were missing.

6.  Footage captured by CCTV installed at the Metal Hut was viewed which showed that at 1013 hours (CCTV display time)  on 9 May 2022, the defendant climbed to the roof top of the Metal Hut and entered the Metal Hut. He used a piler to cut the copper wire and stole three bundles of copper wires stored inside the Metal Hut and left the Metal Hut through the roof top. Case was reported in the afternoon on 9 May 2022.

7.  At 2310 hours on 9 May 2022, police officers intercepted and arrested the defendant who is a Form 8 recognizance holder.

8.  In the subsequent VRI taken on 11 May 2022, the defendant admitted entering the Metal Hut and having stolen the copper wires, which he resold to a recycling store for HK$152. He spent HK$92 of the proceeds on food and kept the rest of HK$60 himself.

Criminal records and background of the defendant

9.  The defendant was born in Bangladesh in 1989. He is 34 years of age. He received primary education in Bangladesh and came to Hong Kong in 2020.

10.  The defendant has no similar conviction of burglary but has 2 previous convictions of theft related offence under TMCC 440/2022 and TMCC 419/2022.

11.  For TMCC 419/2022, which was committed on 24 March 2022, the defendant was convicted on 7 July 2022 and was sentenced to 4 months’ imprisonment suspended for 3 years.

12.  The defendant is married. His wife is aged 26 and she is now working as a domestic helper in Hong Kong, with a monthly income of HK$4,800.00.

13.  During the marriage, they have 1 child, who is aged 12 and is receiving secondary education in Bangladesh. The child is being looked after and financially supported by the defendant’s parents.

14.  The defendant is a Form 8 recognizance holder. He is living on subsidy from the International Social Service Hong Kong Branch, with food coupons of HK$1,200.00 and travelling allowance of HK$350.00. He resided alone at Pak Sha Tsuen, Yuen Long, New Territories.

15.  Prior to his arrival at Hong Kong, the defendant was an electrician with a monthly income equivalent to about HK$2,500.00.

Mitigation

16.  In mitigation, Ms Lee for the defendant pointed out that as the Metal Hut was not used as a residence and was unoccupied since 2018 and had been used as a storage room of some metal scrap and electrical wire by Mr Wong, she therefore invited the court to consider to apply the customary sentence for non-domestic premises[1].

17.  Alternatively, Ms Lee submitted that if the customary sentence of domestic premises be applied, a downward adjustment should be made to reflect the lessened seriousness of the present instant offence, given that there was no evidence of forcible entry into the Metal Hut and there was no confrontation with anybody when committing the present offence.

18.  Ms Lee also rightly pointed out that there are aggravating factors in the present case, which warrant an enhancement from the usual starting point, namely the defendant being a Form 8 recognizance holder and commission of offence on bail.

19.  Ms Lee invited the court to consider that any enhancement of sentence imposed to reflect the defendant’s Form 8 status should not be more than 3 months.

20.  Ms Lee further submitted that the defendant did not carry heavy tools and equipment to facilitate the burglarious entry into the Metal Hut and that apart from stealing property from the Metal Hut, the defendant burgled the Metal Hut with no one injured and no massive loss had been resulted from the crime.

21.  Ms Lee also emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount and that he committed the present offence out of greed and financial difficulty.

Starting point

22.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

23.  Photographs of the Metal Hut have been submitted to court by the prosecution for consideration.

24.  In the present case, the defendant did not pass by an open door or vacant premises and steal food or items of little value[2]. The defendant was clearly looking for premises in which he could steal property for resale. The CCTV footage shows the defendant using a piler to cut the copper wire. The defendant did not steal items of little value but 3 bundles of copper wire with a total value of HK$10,000.

25.  Nevertheless, lower starting points have been taken where premises are vacant or under renovation[3].

26.  Taking into account of the fact that the Metal Hut was unoccupied and not being used as a residence at the time, I am satisfied that a lower starting point is appropriate.

27.  I will adopt 2 years and 6 months’ imprisonment as the appropriate starting point after giving the downward adjustment.

Aggravating features

Commission of offence on bail

28.  Ms Lee had rightly pointed out that there are aggravating factors in this case.

29.  On 7 July 2022, the defendant was sentenced to 4 months’ imprisonment suspended for 3 years in the Tuen Mun Magistracy for an offence of theft committed on 24 March 2022[4]. The defendant was granted bail. The burglary was committed while the defendant was on bail for the theft offence.

30.  The commission of offences while on bail is an aggravating feature of sentence. I therefore enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.

Commission of offences by refugees or torture claimants

31.  The commission of offences by refugees or torture claimants is also capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.

32.  I am satisfied offence of burglary affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.

33.  By reason of the defendant’s Form 8 status I further enhance the starting point by 3 months to 3 years’ imprisonment[5].

34.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity. The sentence is therefore reduced to 2 years’ imprisonment.

35.  There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.

36.  Since the present offence was not committed during the operational period of the suspended sentence, I therefore make no order with respect to the suspended sentence under TMCC 419/2022.