HKSAR v. Md Nazmul

DCCC 60/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 60 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to handling stolen goods. There was a 2nd charge; that has been left on the court file.

2.The particulars of the offence were that on 3 November 2015, the defendant handled some jewellery, which included earrings, rings, a watch, ornaments and foreign exchange certificates, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the items to be stolen goods.

3.The facts agreed by the defendant include the following.  A domestic burglary took place on 3 November 2015 between 7.30 am and 9.20 am.  The victim’s home was in Ki Lun Tsuen, Kwu Tung Road, Lok Ma Chau.  On 1 November, two days before the burglary, a South-Asian male was seen in the village by PW1, who lived nearby.  They spoke before that man left the village.

4.Two days later, on 3 November, at about 9.20 am, PW1 saw the same man again on a bicycle coming from the direction of the burgled premises.  PW1 was obviously suspicious, went to the burgled premises and saw that the air-conditioner had been removed and placed on the ground, which would have allowed the burglar access to the premises.

5.The owner was informed.  At 11.30 am she got home and confirmed that somebody had obviously climbed in through the air‑conditioning unit hole and ransacked her home. 

6.Valuables stolen included passports, re-entry permits, cash, jewellery, and a watch.  The value was about $21,000 to $22,000.

7.At 11.45 am on the same day, the defendant was seen pawning the jewellery and the watch in a Sheung Shui pawn shop, using a Form 8 belonging to another.  He told the police that he accidentally took his brother’s Form 8 and used it anyway, knowing that he was giving the pawn shop false details.  Whether that is true or not, the effect is it hid the real identity of the person pawning the items belonging to another.  The defendant was arrested on 5 November.

8.Under caution, the defendant explained to the police that a man called Hasib, on that very same morning, gave him the jewellery and asked him to pawn it.  The defendant pawned the items and gave the money and the receipt to Hasib.  The defendant gave Hasib’s telephone number to the police.  There was a telephone record check showing that the number the defendant gave the police did not receive any calls from the defendant between 2 and 4 November 2015.  Also, the owner of that telephone number told the police that he did know the defendant, but had not seen him for more than two years, and certainly did not give him anything to pawn.  So it seems that the explanation given to the police is not the truth.

9.The defendant is a 41-year-old male.  He comes from Bangladesh and arrived in Hong Kong just over 10 years ago, seeking asylum.  He was given a Form 8 recognisance form which allowed him to stay in Hong Kong.  In the time that he has been here he has not been in trouble and has a clear record.  His best mitigation today is the defendant’s plea and his clear record.

10.It has been said by the Court of Appeal that asylum seekers who commit serious offences in Hong Kong can expect that to be an aggravating factor.  It is an abuse of the hospitality of the Hong Kong Government.  I do not intend to here increase the starting point for this factor, but the defendant should be warned that if he commits serious or similar offences again in the future whilst here as a guest of the Hong Kong Government, then he may expect a higher than normal sentence.

11.The offence of handling stolen goods in itself warrants an immediate custodial sentence.  It has been said that how the goods were stolen is relevant to sentence.  In this case, the goods came from a domestic burglary.

12.I have been referred to several authorities by both prosecution and defence.  I have taken into account the maximum sentence for this offence is one of 14 years’ imprisonment.  In the Court of Appeal case of R v Chan Wing Kwan and Another CACC 121/1985, the court recognised that the normal bracket of sentence for this offence is between 2 to 4 years’ imprisonment.

13.Mr Sherry has referred me to other appeals where the starting points range from between 2 years and 3 months and 18 months’ imprisonment, depending on the facts specific to each appeal. Mr Sherry submits that a starting point of about 12 months would be appropriate here, or at least less than 18 months, because of the defendant’s clear record and the relatively low value of the goods handled.

14.With respect, I do beg to differ.  In my view, there is some closeness to the primary offence in that the defendant was captured on CCTV, pawning these items within two and a half hours of the burglary being discovered.

15.Having taken those factors into account, mitigation put forward, the primary offence from where the goods came, and the defendant’s previous clear record, I will take a starting point of 2 years’ imprisonment.

16.The defendant has pleaded guilty.  He is entitled to a discount of one-third.  After that discount is applied, 8 months is deducted.

17.For this offence, the defendant is sentenced to 1 year and 4 months’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Yes.