HKSAR v. Ahmed Nisar

DCCC 335/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 335 OF 2017

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Reasons for Sentence

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1.Defendant pleads guilty to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The facts of the case was that the subject premises was 5th Floor, No 121 Ma Tau Wai Road, To Kwa Wan, Kowloon, Hong Kong.  It was subdivided into 4 rooms, A to D, which were occupied at the material time.  The premises was fitted with a metal gate with malfunctioning lock and a wooden door always left open and there was a common corridor inside.

3.The registered owner purchased an air-conditioner for about $1,200 in July 2016, but left it in the common corridor of the premises as it did not work.  The building had a common staircase for all units with no gate, CCTV nor security guard.

4.On 9 January 2017 at around 6.30 pm, the residents in Room B returned and saw defendant moving that air-conditioner.  At around 6.34 pm police officers saw defendant acting furtively, pushing a trolley with that air-conditioner on it and kept looking around.

5.Upon interception and search, a handheld torch, a pair of scissors and a cutter were seized from the defendant.  Defendant claimed that the air-conditioner was rubbish and pointed at the direction of Wing Kwong Street.

6.Defendant led the police to the premises.  The owner confirmed that he had not authorised anyone to remove it.  Defendant was then arrested.  Defendant now admits that he entered the premises as a trespasser and stole from therein.

7.Defendant aged 42, a Pakistani.  He had 5 previous criminal convictions involving possession of dangerous drugs and assaulting police officers, of which he was last sentenced to 4 months’ imprisonment in March 2016.

8.Mr Littlewood submits for the defendant that it should be a case of lower-end burglary, in which only a broken air-conditioner was stolen.  The premises was not locked nor was there any forcible entry.  No damage was caused and the property recovered.

9.Mr Littlewood further says that defendant was simply told to go there to collect it but he did not make any enquiry nor put questions to anyone about its ownership.  Defendant now pleads guilty to the charge and hopes for a lenient sentence.

10.Burglary is a serious offence.  The Court of Appeal had in R v Wong Man CACC 372/1992 and R v Chan Yui Man CACC 36/1988 laid down the guidelines whereupon for burglary involving domestic premises, 3 years’ imprisonment should be imposed.

11.However, in HKSAR v Suen Chi Wai  CACC 90/2015, the court stated that if the intruder was stealing from only the common areas and not individual homes, a lower starting point might be adopted.

12.The present case was that there was no evidence of forcible entry nor any resident put in fear.  The case was clearly so different from the normal case of burglary. 

13.In the circumstances, I assess that 2 years’ imprisonment may be adopted as a starting point.  Given the guilty plea of the defendant, it is further reduced to 16 months.

14.In the circumstances, defendant is sentenced to 16 months’ imprisonment.