HKSAR v. Yameen Muhammad

DCCC 717/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 717 OF 2017

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REASONS FOR SENTENCE

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1.The defendant, a Pakistani, pleaded guilty before me to 3 counts of burglary; the premises in question are all dwellings with only one of them not being occupied at the time (charge 3).

2.He had committed the burglaries within a space of 7 weeks. In the evening on 4 April 2016, the defendant broke in a flat in Sham Shui Po area while the occupier was away and stole therein a computer worth $3,500, two hard discs worth $900 and cash $4,500 (Total losses $8,900). While ransacking the flat, the defendant left his fingerprints on a plastic box in the TV cabinet. Mr. Tong, the occupier, returned later in the evening discovered that the padlocks which were used to secure the door and the gate were broken.   

3.About 7 weeks later, on 12 June 2016, this time he had broken in two of the four subdivided units in the same premises also in Sham Shui Po area. Three of those units were in fact vacant at the time.

4.The defendant stole from the occupied unit cash $12,000, one bracelet ($1,000), one TV set ($700), one DVD player ($300), a ring ($60) and a Nokia mobile phone ($200) (Total losses $14,260 ) while he found nothing valuable to steal in the vacant unit.

5.The defendant, who was captured on CCTV carrying the stolen TV set leaving the scene, was identified by the police.

6.On the following day, he was stopped by police officers in the street; they found on him the ring and the Nokia mobile phone which he had stolen the day before, but for the rest of the loots, he admitted to them that he had already sold them off and used the money on food and drugs.

7.The defendant, aged 43, was a Form 8 recognizance holder at the time when he committed the burglaries. The court, however, heard that the defendant was sent to prison for 13 months and 10 days for the offence of illegal remaining on 18 September 2017; in other words, he is currently serving the sentence. Prior to that, he has one conviction for theft back in December 2016 for which he was given a 3-month prison term.

8.In mitigation, the court was told that the defendant came to Hong Kong in October 2014 leaving behind his wife and 5 teenage sons in Pakistan. He owned a clothing factory at home and attained school up to secondary level.

9.The reason he came over here was to seek asylum, counsel said. Unfortunately, whilst he was here, he started abusing drugs and it was for this reason he committed the burglaries as well as the theft before. But when he was arrested in the present case, he gave up his claim and was therefore charged with illegal remaining.

10.Counsel for the defendant urged the court not to enhance the sentence on the grounds of the defendant being a Form 8 holder so as to avoid double punishment because he is now serving prison term for a similar status – an illegal immigrant.

11.Insofar as the burglaries are concerned, counsel said that charges 2 & 3 should be concurrent as the defendant entered both rooms through the same main door at the material time.

12.There are sentencing guidelines for this type of crime - burglary; for domestic ones, in the absence of aggravating factors a term of 3 years is to be considered.

13.Having heard all the mitigation, I see no good reasons to depart from the guidance as set down by the higher court. For each of the burglary, I take 3 years as starting point. Insofar as his mitigation is concerned, apart from his guilty plea, there isn’t anything of substance.

14.His plea is a timely one so he is entitled to the usual one-third discount. After the deduction, he is sentenced to 2 years for each of the burglary.

15.Taking into account the totality principle, I order that the term of charge 1 should run concurrently with that of charge 3 but consecutively to only 9 months of charge 2. The total term is one of  2 years and 9 months’ imprisonment.

16.Normally, it is an aggravating feature, as the appellate court often puts it, for a Form 8 recognizance holder to commit crimes while remaining at liberty in the community because he is expected to be law abiding while his claim is being processed. When his claim is finally rejected by the authorities or he abandons it like what the defendant did in the present case, he is likely to face charges relating to his illegal status – by then he would cease to be a Form 8 holder.

17.Now that the defendant has been sentenced for being an illegal immigrant; and to enhance the sentence in these circumstances for his Form 8 holder status may, in my view, run the risk of double punishment for the same matter.

18.Having said that, his status at the time of the commission of the burglaries was basically an illegal immigrant; the higher court often said for an illegal immigrant to commit a crime, the sentences for his crime and the immigration offence should be consecutive to each other.

19.Even considering the totality, I do not think that ordering consecutive sentences would be too harsh in the circumstances; I therefore order the overall sentence of the instant case, i.e. 2 years and 9 months, to run consecutively to his existing term.