HKSAR v. Shahzad Saleem

DCCC 498/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 498 OF 2017

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REASONS FOR SENTENCE

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1.The defendants was charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The defendant pleaded guilty and admitted the fact, he was convicted accordingly.

Fact

2.The guesthouse in question had a storage room behind the reception area.  Only the staff of the guesthouse were allowed to enter the storage room.  The defendant was a guest of the guesthouse living in Room 1609.

3.At 0934 hours on 19 March 2017, the defendant entered the reception area and peeped at the desk of the reception counter. The defendant walked away and returned after a short while.  The door to the storage room was opened.  The defendant entered the storage room as a trespasser by inserting his hand and arm into the storage room and stole the guesthouse Manager’s laptop bag from the storage room.  The act of the defendant was captured by the guesthouse CCTV.

4.The laptop bag contained a Lenovo laptop computer with a charger (valued at $7,780), a Fujitsu laptop computer with a charger (valued at $2,000), $8,000 cash, a Wing Lung Bank passbook and a bundle of keys.

5.Report was made, search was conducted.  A rucksack containing the Fujitsu laptop and the Lenovo charging cable was found on the bed inside Room 1609.  The other stolen items were not recovered.

Mitigation

6.The defendant aged 30, a Form 8 holder, unemployed and with limited financial source.  He was married with a daughter of 11 months old.  As he and his wife were arranged with different residence, from time to time he would meet his wife at a Guesthouse, that was the reason why he was present at the Guesthouse in the present case.

7.The defendant committed the present offence while he was on court bail but he had a clear record at time of the offence. He was subsequently bound over by court for a minor offence related to violence.

8.The defendant pleaded guilty, the offence was not premediated and the defence urged the court for leniency.  

Sentence

9.Guesthouse is considered as domestic premises, the customary starting point of sentence for domestic burglary is 3 years.  The defence drew my attention to the case of HKSAR v Suen Chi Wai CACC90/2015 where the Court of Appeal was with the view that where there was no evidence of a forcible entry into the building, and also the fact that the (occupant) concerned was never put in fear, a starting point of 2.5 years would be appropriate.  

10.The defendant committed the burglary by inserting his hand through the open door of the storage room in question and no one was put in fear.  This can be considered as an opportune burglary.  A starting point of 2.5 years would be appropriate. 

11.Further, however, the fact that a person committed an offence whilst awaiting the processing of his immigration claim amounts to an aggravating factor.  In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 the sentence of a clear record defendant was enhanced by 3 months because of his refugee claimant status.  The Court of Appeal before up-holding the enhancement has analysed the reasoning in Sandagdorj Altankhuyag & another [2014] 1 HKC 206 and stated that:-

“Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.”

12.The defence accepted that the defendant was a Form 8 holder, awaiting the processing of his immigration claim, at time of the commission of the crime, but urged the court to consider the background of the defendant and the circumstances of the offence in considering this aggravating factor.  After consideration, for this aggravating factor I enhanced the sentence by 3 months.  Taking into account that he had a clear record at time he committed the offence, no further enhancement would be made for the fact that he committed the offence while on court bail.

13.The defendant pleaded guilty at the earliest opportunity, he is entitled to the full 1/3 discount.  I do not consider there to be any mitigating factor that call for further deduction.

Order

14.The defendant is sentenced to 22 months’ imprisonment.