HKSAR v. MUHAMMAD SHEHBAZ (ALSO KNOWN AS MUHMMAD SAHBAZ, MUHMMAD SHAMBAZ AND MUHAMMAD SHEHBAZ)

DCCC 758/2018

[2019] HKDC 307

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 758 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to the Summary of Facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  At about 12:54 pm on 7 July 2018, the defendant prised open and entered through the top of a rooftop unit on the 8th floor, No 112 Fuk Wing Street, Sham Shui Po, Hong Kong (the rooftop storage) which belonged to Ms Lam Yee Man, Quinto and her husband.

3.  At 3:35 pm, he left the rooftop storage carrying carton boxes with him.

4.  At 3:40 pm, police officers responding to police reports made by Ms Lam arrived at the building where the rooftop storage was situated and saw the defendant departing from the building through the backdoor, carrying the two carton boxes with him.

5.  The defendant was arrested for burglary and the following items (the stolen properties) were recovered from the defendant:-

(a) two boxes containing one electric water pot, three paper boxes, three dolls, six towels, one toy gun, one plastic bag, one photo frame, one comic book; and

(b) one piece of nylon string and one piece of wire tying the two boxes.

6.  These stolen properties belonged to Ms Lam and her husband.

7.  Ms Lam confirmed the total value of these stolen properties was about HK$2,760.

8.  At the material time, the defendant entered the rooftop storage as a trespasser and stole therein the stolen property.

Criminal record

9.  The defendant has six previous convictions, of which one related to dishonesty, namely theft (snatching) conviction in 2016.  He was sentenced to 8 months’ imprisonment for that offence.

Mitigation

10.  The defendant is now aged 39. 

11.  He is a Form 8 holder who was born in Pakistan and has been educated up to Form 4 level in secondary school in Pakistan.  He came to Hong Kong in the year 2001 and has since stayed here firstly as an over-stayer and later as a torture claimant. 

12.  He has married a Hong Kong resident in year 2016 and has now a 3-year-old son. 

13.  The defendant is unemployed and his wife is a housewife.

14.  It is said that the rooftop storage is a non-residential premises and that the stolen property were of low value only. 

15.  It has also been submitted that the defendant merely stole these items for his son. 

16.  It is further submitted that the defendant has a mother in Pakistan who is suffering from cancer. 

17.  Defence counsel urged this court to be lenient on the defendant.

18.  A mitigation letter written by the defendant’s wife was submitted to court which says that the defendant is a loving and caring husband and father and that he committed the present offence merely for the items for his son and that when he saw the stolen property on the rooftop, he thought they were abandoned. 

19.  Later, defence counsel confirmed to this court that the defendant’s wife was not fully aware of the fact of the case, that she was mistaken that the items were just lying around on the rooftop as she mentioned in the letter and that the fact was that the defendant prised open the rooftop storage to gain access to the stolen property.

20.  Defence counsel conceded that in the absence of aggravating or mitigating factor for a fresh offender, the sentencing starting point for burglary of non-domestic premises after trial is 2 years and 6 months’ imprisonment.

Discussion

21.  On conviction upon indictment, the offence carries a maximum sentence of imprisonment for 14 years.  As conceded by the defence counsel, the proper sentencing starting point for a sentence in the case of burglary of non-domestic premises in the absence of aggravating or mitigating factor is 30 months’ imprisonment (see R v Wong Man (unrep.), CACC 372/1992). 

22.  This guideline however is not a straitjacket.  In passing sentence, I have carefully considered all that was said on the defendant’s behalf by Mr Chan.  I will accept that there is no previous similar conviction although there is a theft conviction which also relates to dishonesty.

23.  This court also accepts that in the present case the defendant acted alone.  Tools were used by the defendant in prising open and gaining access to the rooftop storage.  These tools belonged to Ms Lam and her family and were found by the defendant at the scene.  The defendant did not bring any tools for the commission of the offence.

24.  There is an absence of sophistication in the commission of the offence and the value of property stolen is relatively small. 

25.  It is also said that the defendant did not expect anyone to be within the rooftop storage at the time of the offence.

26.  The criminal record of the defendant is not particularly impressive but this court would not treat the same as an aggravating feature in the present case.

27.  The defendant was a Form 8 holder at the time of the offence.  This is an aggravating factor as is laid down in the Court of Appeal case of HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206, that the commission of an offence by a foreign national who was the holder of a Form 8 recognisance could constitute an aggravating factor and could have a sentence enhanced.  It is because that a foreign defendant, when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government and his crime has affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community.

28.  Considering the circumstances under which the offence was committed in this case, including in particular the relatively small value of the stolen property, the sentencing starting point in the view of this court should lie at 2 years and 3 months. 

29.  However, by reason of the fact that the defendant is a Form 8 holder, the same was enhanced by 3 months bringing it to 2 years and 6 months.

30.  This court has also considered all mitigation advanced by the defence counsel.  The defence says the defendant has pleaded guilty at the first available opportunity and he is therefore entitled to a full one-third sentencing discount.  This is the only and most valid mitigating factor in this case. 

31.  Accordingly, the defendant is sentenced to 1 year and 8 months’ imprisonment.