HKSAR v. Qaiser Muhammad

DCCC 81/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 81 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial of one charge of criminal damage.

Facts of the case

2.I would not repeat the reasons for verdict here.  In summary, the defendant together with three other males, without lawful excuse, damaged five tables, twenty glasses and one door at the Bar Pacific situated on the ground floor of the Regal Riverside Hotel in Shatin.  At the time of the offence, they were wearing gloves and used metal bar and hammers to smash the subject properties.  There were customers and employees inside the Bar.  The incident took place in the early hours of 30 March 2016 and lasted about twenty seconds.  It was also captured on CCTV.  The subject properties were insured and the repair costs were around $20,000.  After the incident, they fled and boarded a taxi which was hailed by another unknown Chinese male around the time of the incident and waited in the vicinity for them.

Criminal record

3.The defendant’s criminal record shows that he had been sentenced by the court on four occasions involving five offences, with no similar conviction.

Mitigation

4.The defendant, aged 29, is a Form 8 recognizance holder.  He received basic education.  He is married.  As revealed in the background report, his wife is applying for a dependent visa for him.  However, the Probation officer was unable to contact his wife, as the defendant did not want her to be disturbed further by reason of his involvement in the present offence.

5.He was born in Pakistan.  His parents and siblings are still in Pakistan.  In 2007, he entered HK by boat and applied for asylum due to a life threat connected with a family dispute. 

6.Mr Mughal pointed out that there were no tariffs or guidelines for offences of criminal damage and sentencing would depend on the particulars facts of the case and the extent of damage involved.  In the present case, there was no physical violence on any person present in the Bar; no threat or demand was made; no verbal intimidation; no weapon was brandished against any person.  There was also no suggestion by itself that it was a triad related case.  The planning was not sophisticated as the males involved did not have their own vehicles for getting away, unlike a huge gang having their own vehicles.  Mr Mughal also referred me to: HKSAR v Tang Yi Hang, DCCC 1001/2002; HKSAR v Chiang Tai Mei, CACC 288/2001; HKSAR v Cheng Fai Kin & Anor, DCCC 187/2013; HKSAR v Cheng Kin Yip, DCCC 302 & 631/2015. 

7.On 25 August 2017, the defendant was convicted of his own plea for one charge of illegal remaining and sentenced to 11 months’ imprisonment.  The Defence urged me to consider ordering the sentence for the present offence to run concurrently with the sentence that he is now serving.

Sentence

8.I have carefully considered everything said by Mr Mughal on behalf of the defendant in mitigation.

9.Undoubtedly, this was a very serious act of criminal damage with planning and the intention of disturbing the lawful business operation of the Bar.  I am satisfied that a deterrent sentence is warranted.

10.Mr Sujanani for the Prosecution referred me to The Queen v Lam Sek Lun, CACC 474/1987, in which the appellant was convicted of one charge of criminal damage and one charge of wounding.  He was sentenced to 3 years’ imprisonment and 12 months’ imprisonment respectively.  His appeal for leave against sentence was refused.  Mr Sujanani particularly referred me to the parts of the judgment showing that, despite the absence of evidence that it was a triad attack, a planned attack by a criminal gang which the perpetrators must have foreseen would have the effect of putting the victims, employees and owners in fear and a substantial period of imprisonment would be warranted. 

11.I find the facts of Lam Sek Lun are more serious than the present case, as axes and paint were used to damage the property of a mahjong school and two employees were wounded.  However, I am of the view that the defendant and the other males involved in the present case must have foreseen that their acts would have the effect of putting the customers and employees present at the Bar in fear.

12.I do not find most of the authorities/cases referred by the Defence helpful as the acts of criminal damage involved were triad, money dispute or debt collection related.  However, the facts of Cheng Kin Yip do, in my view, bear some similarities to the present case.  In Cheng Kin Yip, 6-7 masked men were seen arriving at the scene in two cars with licence plates covered.  They were holding large hammers and crowbars.  Some of them were also holding plastic buckets filled with paint.  They forcibly entered a new restaurant in the evening, which was undergoing renovation and slated to open for business on the following day.  They vandalized the restaurant by splashing paint over various properties such as the sides of escalators, fish tanks, floor ceiling, dining tables and the cashier’s desk and smashing the glass walls inside the restaurant and the television monitors.  The incident lasted about 5 minutes and was captured on CCTV.  After the incident, they approached those two cars for getting away.  The restaurant was insured and the damages caused were estimated to be around $100,000.  The manner in which the offence was committed was found to be very organized and professional.  The criminal act was found to carry a triad overtone although there was no evidence of triad involvement.  A starting point of 18 months’ imprisonment was adopted and the two defendants were each sentenced to 12 months’ imprisonment after plea.  In my view, the facts of the present case are more serious as the incident took place during the business hours of the Bar with customers and employees inside.

13.I also referred parties to HKSAR v Rana Wasif Saleem, CACC 15/2014.  I am of the view that the facts of Rana Wasif Saleem bear more resemblance to the present case.  In that case, the victim’s business operation was disturbed.  The defendant and three other persons were involved.  At the time of the offence, the victim was delivering meal boxes to a construction site.  The defendant and one of the three, each holding a crowbar, smashed the windscreen and side mirrors of the victim’s light goods vehicle.  The other two persons acted as a lookout and a getaway driver of their vehicle respectively. During the incident, the victim shouted out asking why they hit her vehicle.  The defendant and the other person continued to smash the windscreen of the window of her vehicle and then ran towards their own vehicle and made a good escape. During the victim’s chase of them, either the defendant or one of them, pointed at her and warned her to be careful as it would not be as simple as hitting her vehicle next time.  A starting point of 2 years and 6 months’ imprisonment was adopted.  Leave to appeal against sentence was refused. 

14.I do accept that, as pointed out by Mr Mughal, no threat, menace and/or violence to persons existed in the present case.  I also note there is no evidence to suggest triad involvement.  However, this was clearly a planned action to disturb the business of the Bar: the taxi was clearly arranged to assist the defendant and the other three males involved in getting away from the scene; all four of them were wearing masks and armed with long, stick objects, i.e., metal bar or hammer.  Further, taking into account that the offence took place during the normal business hours of the Bar, the fear of persons present at the Bar must have been foreseen by the defendant and the other males involved, and the extent of damage, I am satisfied that a starting point of 24 months’ imprisonment after trial is appropriate.

15.The defendant was last sentenced by the court to two months’ imprisonment in 2014 for a theft offence, without taking into account the very recent sentence he received for the offence of illegal remaining.  As the defendant has no similar conviction, I would not treat his criminal record as an aggravating factor.  I don’t find that there is anything in mitigation which justifies a reduction in the sentence; therefore, I sentence the defendant to 24 months’ imprisonment for the present offence.

16.The present offence is a separate and distinct offence from the offence of illegal remaining for which he is now serving an imprisonment sentence.  In principle, consecutive sentences are justified.  Sentence for an immigration offence should be made consecutive to the sentence imposed for the offence, for example, burglary and robbery, which accompanies it: HKSAR v Tong Fuk Sing, CACC 216/1999; HKSAR v Chan Po, CACC 290/1999.  Taking into account the totality principle, I am satisfied that wholly consecutive sentences are appropriate and properly reflect the defendant’s criminality on the two charges.  Therefore, I order the 24 months’ imprisonment to run consecutively to the 11 months’ imprisonment that he is now serving.  This makes a total sentence of 35 months’ imprisonment.