HKSAR v. Riasat Ali and Another
Read the full judgment text of DCCC 321/2017 on BabelCite. This District Court judgment was delivered on 11 October 2017 before Deputy District Judge A Yim.
Criminal law – burglary – Theft Ordinance (Cap 210) s.11(1)(a) and (4) – sentencing – storeroom on rooftop treated as non-domestic premises – three offenders in joint enterprise pried open a locked window of a rooftop storeroom at No 905 Canton Road – no loss of property because no valuables kept – window damage estimated at $1,000 – starting point of 2.5 years for non-domestic burglary applied following HKSAR v Suen Chi Wai CACC 90/2015 and HKSAR v Sim Ka Wing CACC 450/2000 – uplift of 3 months for more than normal degree of planning and premeditation – further uplift of 2 months for D2 as asylum seeker awaiting processing of immigration claim, following HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 and Sandagdorj Altankhuyag & another [2014] 1 HKC 206 – reduction of 5 months for D2 for clear record and offer to compensate – D1 had 11 prior convictions including robbery and theft, no mitigating factors – D1 sentenced to 33 months' imprisonment – D2 sentenced to 30 months' imprisonment – compensation orders of $500 each, to be borne equally by the defendants.
Legal issues: Starting point and adjustments for burglary of non-domestic premises
Outcome: D1 sentenced to 33 months' imprisonment with a $500 compensation order; D2 sentenced to 30 months' imprisonment with a $500 compensation order (to be paid in instalments).
Cites 3 cases
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DCCC 321 & 452/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 321 & 452 OF 2017 -------------------------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.The defendants were convicted after trial for burglary contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. FACTS 2.The Tangs family resided on the top floor including the roof top of the building at No 905 Canton Road. The roof was a private property and a storeroom was erected on it for storage. 3.On 12 February 2017 at around 9:55am, D1 and D2 together with another unknown male entered the storeroom as trespassers with intent to steal therein. The three of them acted as a joint enterprise, prized open a window of the storeroom to gain entry and ransacked the storeroom for about 2 – 3 minutes. There was no loss in the present case as no valuable was kept. The estimated damage caused to the window was $1,000. MITIGATION D1 4.The defendant aged 39, a divorced person. He was a construction worker on the date of arrest. He had 11 previous convictions since 2002, including one count of robbery and 8 counts of theft. He was last convicted in March and May 2017 for pickpocketing and theft from vehicle upon his own plea and was sentenced to a total of 9 months’ imprisonment and was discharged from prison on 16 September 2017. D2 5.The defendant aged 26, married in India with a son aged 7 years old. He was an asylum seeker who came to Hong Kong in March 2016. He was a heroin abuser and was last arrested for possession of dangerous drug in March 2017 and was convicted for that offence in May 2017. 6.The defendant was unemployed in Hong Kong, he relied on ISS assistance and his cousin’s financial support before his arrest. The defendant offered to compensate the $1,000 damage caused to the victim. SENTENCE 7.The storeroom was part of a domestic premises, the customary starting point of sentence for domestic burglary is 3 years. However, in the case of HKSAR v Suen Chi Wai CACC90/2015 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. Mr Tracy also referred me to the case of HKSAR v Lee Chiu Yui [2015] 1 HKC and submitted that the storeroom instead of a usual domestic premises, was distinct from the dwelling house of the Tang’s family. Both Ms Chong and Mr Tracy urged me to take it as a non-domestic premises. 8.The storeroom was on the roof top and separate from the living area of the family and though Mr Tang was alerted by the surveillance system, he was not put in fear. I consider it is appropriate to take it as a burglary of non-domestic premises in the present circumstances. 9.The Court of Appeal stated in HKSAR v Sim Ka Wing CACC 450/2000that the conventional starting-point of 2.5 years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. 10.In the case of Wong Man CACC 372/1992 where the applicant with clear record together with two accomplices having cut the padlock at the main entrance to a store (a non-domestic premises), used duplicated keys to deactivate the external burglar alarm, entered the premises and stole therein. The Court of Appeal was with the view that the sophisticated nature of the offence was an aggravating factor, however, confirmed the starting point of 2.5 years which has taken into account of the clear record of the applicant. 11.The burglary in the present case was committed by a group of three by prizing open a window of the storeroom located on the roof top of a residential building. This was not an opportune theft, the door of the storeroom was installed with double locks and a locked window was prized open. Though the intrusion was brief, the ransack was thorough. A window was damaged, no loss suffered was only because no valuable item was kept inside. In my view the degree of planning and premeditation in the present case was more than normal and justified an increase in the starting point by 3 months. 12.Further, the fact that a person committed the 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:-
13.D2 was an asylum seeker he committed the offence whilst awaiting the processing of his immigration claim, this amounted to an aggravating factor. I considered and enhance the sentence by 2 months. 14.D1 was convicted after trial, I do not consider there to be any mitigating factor in D1’s mitigation. He is sentenced to 33 months’ imprisonment. 15.D2 was convicted after trial. However, he was technically a person with clear record at time of the present offence, and he had no conviction related to dishonesty. Further, he offered to compensate the damage estimated at $1,000 caused to the victim in full. For these factors I reduced his sentence by 5 months. I do not consider there to be any mitigating factor that call for further deduction. He is sentenced to 30 months’ imprisonment. COMPENSATION D1 16.Damage estimated at $1,000 was caused by the defendant, as I indicated earlier should be bore by the defendants equally. I have considered Ms Chong’s submission on his behalf about his financial difficulty and wanted to keep the cash in his prisoner property for his use. D1 was employed as a construction worker up to the time of his arrest, he had $1,668 cash in his prisoner property. Being a Hong Kong resident, he was able to find another job upon his release of the present case. I do not consider that a compensation order in the sum of $500 paid forthwith would cause him any financial hardship in his circumstances. D1 is ordered to compensate the victim in the sum of $500 to be taken from his prisoner property. D2 17.Though D2 offered to compensate the victim $1,000, as I indicated, the sum should be shared between the two defendants. D2 only had $230 odd in his prisoner property, he requested 28 days for the payment. As he was not permitted to work in Hong Kong, I allow him to pay by instalments. D2 is ordered to compensate the victim in the sum of $500, $150 paid forthwith to be taken from his prisoner property and the remaining $350 to be paid within 2 months upon his release of the present case. ORDER 18.D1 is sentenced to 33 months’ imprisonment, and to compensate the victim in the sum of $500 to be taken from his prisoner property. 19.D2 is sentenced to 30 months’ imprisonment, and to compensate the victim in the sum of $500, $150 to be taken from his prisoner property, the balance of $350 be paid within two months upon his release of the present case.
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Cases cited in this judgment
Further hearings and rulings under DCCC 321/2017