HKSAR v. Butt Ummar

DCCC 458/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 458 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant stands convicted after trial of Count 1 of burglary, contrary to section 11(1) (b) of the Theft Ordinance, Cap. 210, count 2 of resisting police officers in the execution of their duties, contrary to Section 63 of the Police Force Ordinance, Cap 232, and count 3 of possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

2.Full particulars of the offences are set out in my verdict delivered today. The burgled premises are residential premises at Room B2, 2^nd floor, No. 9 Wing Lung Street, Cheung Sha Wan in Kowloon.  The premises known as Room B2 was a sub-divided ‘flat’ in Flat B.  PW3 was the tenant of the premises, and had secured it before he left the premises on the morning of 31 March, 2016.

3.He returned to the premises after getting a message from the police and found the padlock with which he had secured the door of Room B2 as well as the door itself had been prized open and the premises appeared to have been ransacked – he had left it in a tidy condition that morning but when he returned he found things had been moved around and the bed clothing on the bed in disarray.  However nothing was missing from his room.

4.PWs 1 and 2, police officers in plain clothes and on foot patrol in the building came upon the Defendant inside Room B2 – he was seen by PW1 squatting near the bed in Room B2 and ransacking the bed.  When he asked what he was doing, the Defendant stood and rushed from the room, pushing aside PWs 1 and 2 who were standing at the doorway of Room B2. The police officers chased after the Defendant and were able to subdue him after a brief struggle at the landing between the 1^st and 2^nd floors of the building.  When PW1 searched the Defendant there, he found Exhibit P2, a silver coloured crowbar, tucked at the back of the Defendant’s jeans, under the black upper garment that the Defendant was wearing. The Defendant was arrested for the offences of burglary and assaulting police officers at the scene.  He was brought back to the Cheung Sha Wan Police Station where a thorough search was conducted on the Defendant, and the dangerous drugs the subject matter of Count 3 was found in a pocket of the Defendant’s jeans.

Previous Convictions

5.The Defendant has 21 previous convictions in 15 court appearances. His criminal record dates back to 1997.  Although he has no previous convictions similar to burglary, he does have dishonesty related offences.  He also has previous drugs related offences as well as a previous offence of assaulting a police officer.

Mitigation

6.Mr. Polson indicated that he was on bail in respect of the last conviction on his criminal record when the present offences were committed. That must be viewed as an aggravating feature. The Defendant is a divorced man and had been in Hong Kong since 1996. He worked as a transport worker.

7.In passing sentence I have carefully considered everything said on the Defendant’s behalf by M. Polson.

8.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.

9.We had heard evidence that the whole building was awaiting re-development although it was occupied.  Lower starting points have been taken where the premises are not occupied.  In HKSAR v Chau Man Ying,CACC 439/2011, the appellant was sentenced to 2 years after trial for burglary of a flat in a vacant residential building awaiting redevelopment.

10.Considering the burglary was opportunistic; the premises were almost derelict and the value of the property stolen was very low the Court of Appeal substituted a sentence which enabled the appellant’s immediate release. The appellant had been in custody almost 12 months.

11.I do not find that the burglary herein was opportunistic.. The flat was secured and needed to be broken into to gain entry. The Defendant was carrying tools with him at the time of the burglary,  namely the crowbar, Exhibit P2.

12.In HKSAR v Lee Chiu Yui, CACC 24/2014, the Court of Appeal held where the burglar had with him an array of housebreaking tools when burgling a temporary office which was cleared out with all properties removed and was ready to be demolished the appropriate sentence after trial was 2 years imprisonment.

13.I accept that on this occasion nothing had been stolen - that is because the police officers came upon the Defendant when he was ransacking the room.  I accept that even if property had been stolen, it is unlikely that it would have been of high value.

14.In the present case, I find that there was no aggravating features in the commission of the burglary offence in that nothing had been stolen, the Defendant committed the offence alone, the offence was committed at a time when the occupant had left the premises and the possibility of confrontation was low, and the damage caused to the door was not substantial.

15.I am therefore satisfied the appropriate starting point is 2 1/2 years imprisonment for Count 1.

16.A person convicted of an offence contrary to Section 63 of the Police Force Ordinance, Cap 232 is liable upon summary conviction to imprisonment for 6 months and a fine of $5,000.

17.Having considered the circumstances of the offence here, and the circumstances of the Defendant, I am satisfied that the appropriate starting point is 1 month’s imprisonment.

18.The dangerous drugs in Count 3 is one plastic packet containing 0.12 grammes of a crystalline solid containing methamphetamine hydrochloride.  Section 8(2) of the Dangerous Drugs Ordinanance, Cap. 134, provides that on conviction upon indictment a person is liable to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years.  Section 54A requires the Court to consider a Drug Addiction Treatment Centre Report unless in the same proceedings the person is sentenced to imprisonment of more than 9 months.

19.As the sentence in respect of Count 1 would exceed 9 months’ imprisonment, it is not necessary to call for a Drug Addiction Treatment Centre Report.

20.Having considered the circumstances of the offence in respect of Count 3, as well as the circumstances of the Defendant, I am satisfied that the appropriate starting point is 6 months’ imprisonment.

21.These are separate and distinct offences warranting consecutive sentences but I do bear in mind the totality principle of sentence. I shall order that the sentences in respect of Counts 1 and 2 be served concurrently, and that for Count 3 be served consecutively to the sentence for Counts 1 and 2.  That is a total of 3 years’ imprisonment.

22.The Defendant has been convicted after trial.  He has shown no remorse.  I can see no features to warrant any further discount in sentence. He is sentenced to a total of 3 years’ imprisonment.