HKSAR v. Amjed Ali and Others

DCCC 1176/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1176 OF 2016

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Reasons for Sentence

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1.On this indictment the court is dealing with 14 individual charges of burglary. The 1st defendant has pleaded guilty to all those 14 charges. The 2nd defendant has also pleaded guilty to Charge 14 and the 3rd defendant faces Charge 8.

2.In summary, the burglaries are all residential buildings and all involve premises that appear to have been deliberately targeted because they were empty at the time.  The period for which those premises were empty varies considerably.  In the 14th charge, the premises had been empty for some 20 years.

3.The amounts taken in the burglaries also vary from nothing in some burglaries to what are fairly substantial sums in some other burglaries. 

4.A brief summary of the burglaries that were involved.  In the 1st charge, the premises, residential premises had not been occupied since 2013.  There was nothing taken in that burglary as far as we are aware.

5.The 2nd charge, residential premises had been vacated for 5 years.  Some items worth up to $20,000 were taken from that burglary.

6.The third burglary, the premises had been vacant since November 2014.  Again, in that case, nothing was obtained during the burglary.

7.The fourth burglary had been vacated since 2007 was visited occasionally.  No items were taken from that -- there was no loss from that burglary. 

8.The fifth burglary was vacant during the period in which the resident was travelling between May and September 2016.  In that burglary, nine keys, spare keys were taken.

9.The sixth burglary had been in a premises vacant since 2008, and the list of items taken is fairly considerable, 41 bottles of wine, 35,000; cameras, five cameras; items such as chopsticks and watches; cash of $10,000; hi-fi system, $40,000; and pottery as well.

10.The 7th charge involves a premises where the resident was absent from July to September because of a medical problem, had been admitted to a hospital.  Cash and a camera had been taken.

11.The 8th charge is a charge that concerns two defendants, the 1st defendant and the 3rd defendant.  This is a premises at Dragon Phoenix Mansion that is described in the facts as a storeroom.  And it is submitted certainly by the 3rd defendant’s counsel that it should not be treated as a domestic premises.  I will deal with that later.  Various items were taken including electronic goods such as television, desktop computer, bicycle.  And the 3rd defendant’s case is that he assisted in removing some of those items.

12.The 9th charge involves another premises where the resident did not actually reside in it but things were stored there.  Some, it was described, $140,000 worth of goods were taken in that burglary.

13.In the 10th charge, the premises had been vacated since February 2014.  Various items valued up to $16,600 were taken from that.

14.The 11th charge involved a premises where the resident was absent in the mainland for work and goods up to $12,750 were taken from that.

15.In the 12th charge, the premises were vacated because the resident was travelling and some $2,820 worth of items were taken.

16.The 13th charge had been -- again the resident was travelling.  Goods worth some $6,000 were taken.

17.The 14th charge, as I have indicated earlier, involved a premises that had been vacant for over 20 years, and the 1st and the 2nd defendant were involved in a burglary of that premises.  The 2nd defendant had used a torch to illuminate the premises and the defendants were intercepted after that burglary.

18.That is a summary of the cases and the defendants’ involvement in each of them.

19.As far as the individual defendants are concerned, the 1st defendant is aged 32.  He is a Hong Kong Identity Card holder, educated up to Form 2 in Hong Kong and has worked as a construction site worker.  He is married and has a young child, I understand.

20.He has previous convictions for burglary on three occasions, has been sentenced to imprisonment on all those occasions; most recently, in 2013, for 20 months in respect of two burglaries.  It seems -- it would appear to be a total of 35 months’ imprisonment on that occasion. 

21.The 2nd defendant is described as a Form 8 holder.  He has no convictions in Hong Kong and he is aged 22 years old, from India and would be in receipt of international social services for his living.

22.The 3rd defendant is of the same status; he is also a holder of immigration Form 8.  He is from India.  He is aged 27.  He does have previous convictions in Hong Kong dating back to 2013.  Sorry, wrong one.  2014.  Three previous convictions for shoplifting and finally a conviction on 24 March 2017 for possession of arms and ammunition without a licence, serving a sentence of 6 months’ imprisonment, still serving a sentence of 6 months’ imprisonment.

(Clarification re D3’s current sentence)

23.But in any event he is currently serving a sentence of imprisonment.  That is what I needed to know.

24.I shall deal with the principles of how to approach sentence.  The premises are all, with separate consideration of the 8th and 14th charges, are all, on the face of them, domestic premises.  And it is clear that the starting point for sentence in a domestic premises burglary for a plea of not guilty, for a person of clear record is one of 3 years’ imprisonment.  So that will, on the face of it, be the appropriate starting point for each of these burglaries.

25.Submission is being made in relation to the 2nd defendant on the 14th charge that the premises were effectively empty and had been for some 20 years or not been resided for some 20 years.  And there is a proposition of sentencing that where there are observably vacated premises with no or little loss of property involved, sentences for their burglary may reflect that fact by the adoption of a lower starting point for sentencing. And it said it is irrelevant whether the premises are domestic or commercial.

26.That would appear to apply to the premises in the 14th charge.  It would appear also that all the premises in all 14 burglaries are observably vacant because that would appear to be the reason why the 1st defendant targeted them.  But it cannot be said for most of them there is no or little loss of property.  In the 14th charge, the only property taken was a stamp album.

27.What I shall do is indicate what I consider the appropriate starting point for sentence for each defendant in respect of the burglaries that they are involved in when I deal with each particular defendant.  But I will observe the principles of, firstly, a 3-year starting point for a domestic premises burglary; there would be a 2½ years’ starting point for a non-domestic premises burglary and a starting point which would be in the discretion of the court where a premises falls within the category “observably vacant with no or little loss of property” and other factors would indicate that that would be the appropriate starting point to take.

28.I deal with the 1st defendant.  He faces the 14 charges.  I have considered in respect of the offences that he faces whether the starting point should be lower than the normal 3-year starting point for burglary of a domestic premises because the defendant did target premises that were vacant; some were vacant for short periods; others had been vacant for long periods.   All the premises were residential premises.  However, it does appear to me with the exception of perhaps the 8th and 14th charges that the defendant was a persistent burglar, it was his modus operandi and it was a standard approach to his burglary practice.

29.For that reason, I do not believe that generally in respect of the burglaries that the defendant committed at domestic premises, there should be a deduction from the normal starting point for him. Furthermore, the 1st defendant is also a person with a number of convictions, previous convictions of burglary, and of course that is an aggravating factor in respect of each of the burglaries that he has committed. 

30.I have said that for the 1st defendant, the appropriate starting point on the burglaries involved in the 1st to 7th charges and then the 9th to 13th charges is 3 years’ imprisonment, or 36 months, that being aggravated by his previous convictions would mean a starting point of 42 months in respect of each charge, and he is entitled to one-third discount from that in respect of each of those charges, and the final sentence for those charges is one of 28 months’ imprisonment. 

31.I now turn to the 8th charge and the 14th charge in respect of the 3rd defendant. 

32.The 8th charge involved a premises that was described as a storeroom.  They are in a domestic premises which was the Phoenix Mansion, but clearly they would not be a residential part of that premises.

33.I consider that having regard to all the overall factors, it would be correct for me to deal with those as a non-residential premises.  That would mean that this defendant would face a starting point for sentence of 30 months’ imprisonment.  Due to the aggravating factor, the starting point for sentence would be 36 months’ imprisonment.  After deduction for his plea of guilty, that would lead to a sentence of 24 months’ imprisonment on the 8th charge.

34.On the 14th charge, these premises would appear to fall within the category of “observably vacant premises with no or little loss of property” due to the fact that they have not been resided for over 20 years.  

35.My starting point for sentence in respect of this defendant on the 14th charge will be one of 24 months’ imprisonment. Again, an additional 6 months’ imprisonment for his previous conviction would lead to a starting point of 30 months’ imprisonment leading to a final sentence of 20 months’ imprisonment. 

36.I must determine the overall totality of sentence.  In this respect I take into account and look at the mitigating factors put forward by the defence.  So in respect of the 1st defendant, there is his early plea of guilty, the remorse he has shown, the fact that he did advise the police of three burglaries he had committed which the police were unaware of, there is no vandalism or want of injury to any victim, the majority of the offences appeared to have been committed alone, only domestic premises, so there are no great organisation involved and all the premises are unoccupied.

37.When looking at this series of offences, one must consider what an overall starting point for sentence would have been for this defendant and then reduce that by one-third.  Also Mr Donald makes -- puts forward in mitigation that the defendant committed these offences as a result of addiction he had to the drug “Ice” which he subsequently considers that he has rid himself of and he wishes to return back to his home so he can care for his new wife and young daughter. 

38.However, this is -- a considerable number of burglaries are involved here over quite a period of time and these are serious offences.  I consider that the appropriate starting point for these serious offences, all 14 of them, would be in the region of 6½ years which would lead, after deduction for a plea of guilty, to a total of 52 months’ imprisonment.  I consider that is the appropriate figure for this defendant on these charges, a final overall sentence of 52 months’ imprisonment.

39.I will achieve that as follows.  I order that the sentences on the 1st to the 7th charges which are all 28 months’ imprisonment be served concurrently to each other.  I order that the sentences on the 8th to the 14th charges be served concurrently to each other.  But the 24 months of those sentences be served consecutively to the 1st to the 7th charges.  That leads to a total overall sentence of 52 months’ imprisonment.

40.I will deal now with the 2nd defendant.  He faces Charge 14.  As far as he is concerned, his mitigation is his clear record, his plea of guilty, the fact that the premises had not been occupied for some 20 years and the only item taken was a stamp album of what appeared to be very low value. 

41.As I have indicated, in relation to the 1st defendant, it does appear to me that the proposition -- that these are observably vacant premises with little or no loss of property being involved. And also the defendant’s role appears to be that he became involved at a late stage and assisted the 1st defendant by assisting in lighting from the torch. 

42.Having regard to this defendant on this charge, I consider a lower starting point would be appropriate for him.  And on the 14th charge, I am going to adopt a starting point of 21 months’ imprisonment for this defendant.  After deduction for his plea of guilty, that will lead to a sentence of 14 months’ imprisonment for him.

43.I turn now to the 3rd defendant.  He faces Charge 8 with the 1st defendant.  Again, as indicated when sentencing the 1st defendant that I consider a lower starting point than the normal 3 years for domestic premises burglary would be appropriate for him. 

44.In respect of the 1st defendant, before the aggravating factors were built into the sentence, I took a starting point of 30 months’ imprisonment.  I do take into account the 3rd defendant’s more limited role than the 1st defendant, I will adopt a starting point of 27 months’ imprisonment. 

45.After deduction for his plea of guilty, that leads to a sentence of 18 months’ imprisonment for this charge.  That must of course be served consecutively to any existing sentence that he has.

46.Yes, those are the sentences I will impose for these charges.