HKSAR v. Hossain Md Emran

DCCC 646/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 646 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty today to one charge of burglary and the facts of that burglary are straightforward. On 26 November 2013, the defendant admits he burgled a domestic premise on 8th floor of a building in Sham Shui Po.

2.The victim of this burglary had left home that day at about 1 pm after locking his front door.  His building was, at that time, under renovation and surrounded with scaffold.  He came home some three hours later to find his home ransacked.

3.The defendant had entered and stolen a 36-inch television, two watches and $500 cash.  The victim’s loss was $6,600.  The victim found a window was open and he had probably not secured it when he left home.  He also found his back door open.

4.After investigation, the defendant’s thumbprint was found on a container placed on the television cabinet inside the premises. That container had previously contained the $500 stolen by the defendant.

5.The defendant was not arrested for this offence until 22 August 2014.  The defendant is not a man with a clear record.  In 2011, he was convicted of a theft and sentenced to 15 months’ imprisonment.  He had climbed on top of a roof of a church and stolen copper wire installation.  Not long after, in December 2012, he was convicted of going equipped for stealing and sentenced to 8 months’ imprisonment.  On 19 September 2014, he was convicted after trial of a burglary offence and sentenced to 3 years’ imprisonment: DCCC 492/2014.  I convicted the defendant after trial.  In that case he climbed into a window of the victim’s home and was caught red-handed.

6.In mitigation, I have heard the defendant is 38 years old, came to Hong Kong in 2006 and he is claiming asylum.  He comes from Bangladesh where he has a wife and son, as well as other immediate family living there.

7.A burglary of a domestic premise will normally attract a three-year starting point where no aggravating or mitigating factors exist.  Here, no such factors exist.  However, Mr Leung, defence counsel, has submitted that there has been a delay in bringing this charge to court. 

8.It is submitted that the defendant should have been charged with this burglary at the same time as the burglary charge of the trial dated 12 September 2014.  The suggestion is the delay has been unreasonable.  The defendant has himself suggested that the delay was deliberate. 

9.The suggestion the delay is deliberate is because the defendant made a complaint against the police for the burglary of DCCC 492/2014. Because of that, the police have deliberately delayed charging him with this burglary.  This is a groundless accusation or suggestion.

10.Both Mr Sherry and Mr Leung have provided a chronology leading to the charging of this offence.  The prosecution’s chronology is marked MFI1, and the defence chronology and authorities referred to are marked as MFI2. 

11.I will refer to the relevant dates.  I will first refer to the dates for DCCC 492/2014.  The defendant was arrested on 14 January 2014, the date of the offence.  On 13 June 2014, the case was transferred to the District Court from the magistracy.

12.On 4 July 2014, the defendant in the plea court of the District Court indicated a plea of not guilty.  The trial was set down for 12 September 2014.  After trial, I convicted and sentenced the defendant on 19 September 2014.

13.Where today’s charge is concerned, the first relevant date is 26 November 2013, the date of the offence.  On 14 February 2014, the fingerprint report was available and the defendant’s fingerprint was identified. 

14.On 21 March 2014, this team of officers was informed by another team of officers that the defendant was detained in Lai Chi Kok.  After that, an interpreter was arranged and an interview date at Lai Chi Kok was arranged.  The defendant was interviewed on 28 May 2014 under caution. He denied this offence.  That is his right and it is not a criticism.

15.In June 2014, the police confirmed with the victim that he did not know the defendant.  The defendant was ultimately arrested on 22 August 2014, that is 21 days before the trial of the defendant for the burglary charge of DCCC 492/2014. 

16.I see no reason for that trial to have been delayed. The investigation of this case had not been completed by then.  I do not find that there has been any delay in bringing this charge to court.  I accept that the prosecution could not deal with both burglaries at the same time.  FMI1 goes on to explain the timeline for the investigation of this burglary.

17.After legal advice had been completed, the defendant was charged on the 6 July 2015.

18.This is not a case where two offences arise out of the same transaction and they are not dealt with together.  This is not a case where the defendant admitted the offence very early on and there was an unreasonable delay in charging the defendant.  This is not a case where the defendant could reasonably have expected the prosecution to add this burglary charge to the burglary trial set down on a plea day of 4 July 2014 when the defendant had not yet been arrested for this burglary until 22 August 2014.

19.As I have said, the suggestion the delay is deliberate by two separate teams of police officers conspiring to delay the prosecution of this burglary charge is groundless.

20.I have been referred to two authorities.  I have read both authorities and they are not related to a delay in prosecution. 

21.HKSAR v Cheung Lai Sing Dickson CACC 137/2003, deals with a sentence imposed that was made partly consecutive to a sentence the appellant was already serving.  However, in reality and unknown to the sentencing judge, that appellant had served that sentence in its entirety already.  That is not the case here.

22.In HKSAR v Eftakhar Beg HCMA 262/2015, the High Court dealt with computation of sentences of imprisonment.  That appeal dealt with a deduction to a sentence of time spent by an appellant in administrative detention.  That is not the case here.

23.Defendant, please stand up.

24.I have considered the facts of this case, the defendant’s plea and mitigation put forward.  I will take a starting point of 3 years’ imprisonment.  The defendant is entitled to a discount of one-third for his plea of guilty.  After that deduction is applied, the sentence would be one of 2 years. 

25.I will take into account that the sentence the defendant is serving now and make today’s sentence partly consecutive.  But I make it clear that I do not do this because of any delay on the part of the police or the prosecution. 

26.Despite two separate prosecutions, I should still take into account the totality principle.  The two burglaries were committed about two months apart, and if they had been dealt with together or soon after each other, there would be no doubt have been a partly consecutive sentence imposed.  Bearing the totality principle in mind, I will make 10 months of today’s 2‑year sentence consecutive to DCCC 492/2014.