HKSAR v. RASHID ALI

DCCC1265/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1265 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of burglary and was convicted accordingly.

Brief facts

2.  PW1 resided at Room C on the rooftop of the building situated at No.219 Ki Lung Street in Shamshuipo (the premises).  On 14 October 2011, at about noon, two police officers were on patrol on the rooftop of another building situated at No.150 Yu Chau Street.  The officers were able to spot the defendant across the building and saw the defendant wandering around the premises.

3.  The defendant was seen peeping through and later tampering with the window of the premises.  The defendant succeeded to enter into the premises through the window.  One of the police officers, PW2, went to the premises and found the defendant holding a TV set and one DVD player outside the premises. 

4.  The defendant was intercepted and claimed that his friend asked him to take the abovesaid property from the premises.  The defendant was arrested.

5.  The occupant of the premises PW1 returned in the afternoon and confirmed that the TV set and the DVD player  belonged to him.  A window of the premises was damaged and the premises were ransacked.  PW1 did not know the defendant nor did he authorise anyone to take away things from his premises.

Mitigation

6.  Although the antecedent statement of the defendant stated that the defendant was single and did not have a fixed place of abode in Hong Kong, the defendant said he in fact got married in 2009 with an Indonesian lady in Hong Kong.  His wife is now pregnant. 

7.  At the time, the defendant lived in Shamshuipo and received public assistance to pay the rental.  His wife now lives in Yuen Long.  The defendant claimed that he came to Hong Kong in 2006, not 2007, and alleged to be a torture claimant.  In mitigation, it was submitted that the victim suffered no loss as the stolen property was recovered.  The defendant does not know the victim who, I believe, is also a Southeast Asian male.

Sentence

8.  The defendant is aged 25 and had five previous convictions starting from 2008, with one similar back in 2009.  The defendant committed his latest offence of going equipped and was sentenced to 2 months’ imprisonment in November 2011.

9.  The defendant came to Hong Kong in 2006 and was enjoying financial assistances from the Hong Kong government.  Yet, the defendant did not appreciate such privilege and committed various criminal offences in Hong Kong.  He did not provide truthful information to the police when the antecedent statement was prepared.  The most important mitigation factor is the plea of the defendant for which he is entitled to have one-third discount in sentence.

10.  The sentencing guideline for domestic burglary is an imprisonment term of 3 years.  In the circumstances, I would adopt a starting point of 3 years and reduce the sentence to 2 years.  I have to consider the totality principle as the latest conviction of the defendant related to the offence of going equipped.  As the latest offence related to a separate victim with a different location, I would order that the sentence of 2 months for the last conviction should be served consecutively to the present sentence of 2 years.