HKSAR v. AZAM SHER

DCCC 743/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 743 OF 2015

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

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

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

REASONS FOR SENTENCE

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

Introduction

1.  The defendant, a Pakistani male, appeared before me this morning and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1) and also four other charges of theft, contrary to section 9 of the same Ordinance (Charges 2 to 5).

2.  The victims of these five charges are all shops, ie commercial premises, situated in various locations in Hong Kong Island as more particularly described in the charge sheet.  All these five offences took place in a period between 15 May 2015 and 24 May 2015.  In the last two offences of theft, they even took place within the same day and were committed whilst the defendant was still on police bail.  In some of these cases the images of the defendant were captured in the CCTV installed by the relevant shops in question when he committed the offences.

The facts

3.  The facts of each case is straightforward and really unremarkable.  According to the facts which were admitted by the defendant, in Charge 1, when the shop in question was burgled, the CCTV captured the defendant forcing open the wooden door of the shop by pushing it with his hands.  He then entered the shop in the early hours of the morning of 15 May 2015 and later left with some items in his hands.  The shop was primarily selling accessories on bed and clothing.  The manager of the shop later returned to the shop at around 11 in the morning and discovered that the following items were missing from the shop:-

(1) HK$680 from the cashier;

(2) six pieces of jackets in the total value of HK$8,160;

(3) a pair of shoes valued at HK$200.

4.  The defendant was later arrested by the police for the other theft offences.  Under caution and in the presence of an interpreter, he admitted this offence. 

5.  In Charge 2, it is a shop theft case, and it was committed by the defendant in a “Mannings” store located in Central.  The manager of the shop discovered that three boxes of hair products valued at HK$230.70 in total were missing from the display rack beside the entrance of the shop.

6.  The CCTV footage of the shop revealed that a South Asian male took away the stolen properties at around 1021 hours and left the shop without payment.  Defendant later admitted to the police that indeed he was the one who stole these products from the Mannings.

7.  The defendant was first arrested by the police in Charge 3.  He was seen by the police at around 1915 hours on 21 May 2015 when he acted furtively and pushed a shopping cart with a shopping basket containing various shopping items as he was seen leaving the AEON supermarket in Kornhill at Quarry Bay.

8.  The defendant was immediately intercepted by the police and inquiry with the security guard of the supermarket revealed that the defendant in fact had made no payment for all the items, including 32 pieces of groceries valued at HK$1,205.20 in total, contained in the shopping basket (valued at HK$50) and the shopping cart (valued at HK$700).

9.  The defendant however remained silent under caution for this offence.  He was subsequently released on police bail. However, he went on to commit Charge 4 and Charge 5, the two separate shop theft offences, on the same day, on 24 May 2015.

10.  In Charge 4, at around 1045 hours in the morning on 24 May 2015, the defendant was seen in the CCTV and discovered by the manager of a “Market Place” supermarket in Central when he took some items from the rack of the shop and put them into a white bag that he was holding.  A security guard of the supermarket immediately went to check the rack and found that three bottles of shampoo and conditioner valued at HK$140.40 were found missing.  The security guard tried to intercept the defendant but to no avail. A report was then made to the police. 

11.  In Charge 5, the defendant committed a shop theft again and this time, he was found by the police acting furtively near the shop “Bonjour” Cosmetic and Beauty Centre located in Queen’s Road Central.  At around 1745 hours in the afternoon, the defendant was found leaving the shop in a hurry with something in his hand after entering the shop for just five seconds.  A police officer immediately intercepted the defendant outside the shop and found that he was in fact holding a pack of perfume sample valued at $32 in his hand.  The manager of the shop later confirmed to the police that in fact the perfume sample belonged to his shop and the defendant had not paid for it.

12.  Under caution, the defendant admitted in the presence of interpreter that he had committed both offences in Charge 4 and Charge 5.

Criminal record and the background of the defendant

13.  The defendant had, between 2008 and 2013, eight previous convictions in Hong Kong.  In particular, between 2011 and 2012, he had committed three charges of shop thefts similar to Charges 2 to 5 and was sentenced to short imprisonment terms by the magistrates.

14.  He was last convicted in District Court for a more serious offence of trafficking in dangerous drugs for which he was given a sentence of 34 months’ imprisonment.  The defendant was only discharged from the prison in February this year.  In other words, he committed the present series of offences in less than three months after he was released from the prison.

15.  Defendant is still single and he had received primary education only in Pakistan.  In mitigation, his solicitor, Mr Cheung, told the court that the defendant came to Hong Kong in 2008 as an asylum seeker.  Before he was arrested, he received a housing subsidy from the International Refugee Service at a rate of about $1,000 each month. 

16.  Out of the five charges, Mr Cheung acknowledged the seriousness of Charge 1 and that is the burglary offence.  However, Mr Cheung stressed the fact that the defendant indeed is very remorseful and he had co-operated with the police.  With regard the to the burglary offence, Mr Cheung submitted that apart from the fact that the defendant has similar records of shop theft, this is the first time he committed a burglary offence and the loss of the shop cannot be regarded as substantial.  The burglary was committed by the defendant alone and it was not carefully planned and it was not sophisticated as the defendant did not use any tool when he committed this offence.  All in all, Mr Cheung urged the court not to consider increasing the sentence for this charge other than the normal starting point for a non-domestic premises because of a lack of aggravating features in this case.

17.  As for the other four remaining shop theft offences, Mr Cheung fairly conceded that because of the defendant’s previous records relating to similar offences, that will be an aggravating feature which the court can take into account when passing the sentences. 

18.  Mr Cheung also agreed with the court that because, in relation to the last two shop theft offences, Charges 4 and 5, the defendant committed those two charges while he was released on police bail, therefore, in relation to those two charges, there were added aggravating features.

19.  However, Mr Cheung still urged the court to consider the principle of totality and to be as lenient as possible taking into account the defendant’s remorseful attitude and his co-operation with the police.

Consideration of sentence

20.  The normal starting point for a non-domestic burglary has been held by the Court of Appeal to be that of 2½ years and that is 30 months’ imprisonment. 

21.  In Charge 1, the burglary charge, I agree with Mr Cheung’s submission that serious as this first offence may be, this is, however, not the most serious type of burglary case that the court used to deal with.  I can also agree with Mr Cheung that there are no further aggravating features in this offence, albeit that the defendant has a similar record of shop theft in the past. 

22.  I therefore decided not to increase the sentence other than the normal 30 months’ starting point.  In this charge, the defendant pleaded guilty for which he should be entitled to a one-third discount. Therefore, in Charge 1, I will sentence the defendant to 20 months’ imprisonment.

23.  As to the remaining four charges of shop theft, one can see that the commission of these offences involved simple appropriations from the shop.  The defendant committed the offence alone without any accomplice. 

24.  For Charge 2, taking into account of the fact that the value of the property involved is only $230.70, I will use 4 months as a starting point.  Because of the fact that this is not the first time the defendant committed a shop theft offence, (he had three previous similar records) I decided to increase the starting point for a further 2 months.  Because he pleaded guilty, the sentence will be reduced by one-third and he shall receive 4 months’ imprisonment for this charge.

25.  In Charge 3, the property involved, however, comes to a total of nearly $2,000.  In this charge, I will use 7 months as the starting point and increase the sentence by 2 months to reflect that he had previous similar records.  Because he had pleaded guilty, again he is entitled to a one-third discount, so the sentence is reduced down to 6 months.

26.  In Charge 4 and Charge 5, these two charges were committed within the same day, one in the morning and one in the afternoon. The theft is simple and straightforward and the property involved is of relatively low value in each case.  I will however treat both cases the same when passing the sentence as they are a series of offences committed on the same day, although against different shops. 

27.  In each case, I adopt 4 months’ imprisonment as the starting point.  But apart from the 2 months’ increase on account of the previous records as happened in the other two shop theft offences, I also increase the sentence on each charge further by 1.5 months, and that is from 2 months to 3.5 months, to reflect the fact that this defendant also committed these offences whilst on police bail. 

28.  The starting point is in each charge, is therefore 7.5 months and after the one-third discount because of the pleas, in Charge 4 and Charge 5, the defendant will each receive a 5 months’ imprisonment.

29.  The total sentences for the shop theft in relation to Charge 2 to Charge 5 is therefore 20 months’ imprisonment in total. 

30.  Lastly, I have to consider the totality principle.  In the end, I order that all the sentences in relation to Charge 2 to Charge 5 be served concurrently to each other.  In other words, in respect of all the four theft offences, the defendant will only serve a total of 6 months’ imprisonment which however, have to be served consecutively with the 20 months’ imprisonment in Charge 1. 

31.  The total sentence is therefore 26 months’ imprisonment.