HKSAR v. Saeed Asif Shezad

DCCC 737/2017

[2018] HKDC 397

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 737 OF 2017

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Reasons for Sentence

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1.The defendant has been convicted after trial of a single charge of burglary.

2.In the charge, the building is described as a hut.  In the Summary of Facts a slightly more expanded version of that is put as a one-storey standalone farming hut, and we can see from the photographs it is aptly described.  It is clearly a hut in which agricultural instruments or gardening instruments are kept to service the little plot of land that is kept as what appears to be some kind of market garden.

3.As far as the facts are concerned, they are set out in the judgment, but I convicted the defendant of entering and stealing some items of low value inside that hut:  pieces of paper, car keys, photocopies of documents; items of apparently no value at all.

4.The defendant also was in possession of a gardening implement, a pruning knife, which he was waving around.  His behaviour does appear to have been somewhat bizarre.  In any event, those are the salient facts.

5.As far as the defendant’s background is concerned, he is a Form 8 holder.  He was of clear record at the time of this offence.  He has been sentenced to a suspended sentence for an unalike offence of criminal intimidation since then.  Obviously, as a Form 8 holder, he should not have any employment here.

6.He is a single man awaiting the outcome of his application presumably for refugee status, aged 28, and there is made reference in the evidence to evidence of the defendant returning items found in the street, acting in a very basically honest way.

7.It would appear to me this offence was an opportunistic offence committed while he was out wandering in the New Territories.

8.As far as the sentence is concerned, the guideline sentence for a non-domestic premises burglary for a person of clear record convicted after trial is a starting point of 30 months’ imprisonment.  Of course, it is often said that these guideline sentences are not straitjackets, and the kinds of buildings and structures that can be the subject of unlawful entry are manifold and varied, ranging from industrial or commercial units with valuable items inside to properties that are basically abandoned and have inside items of little or no value.

9.I have been referred to the case of HKSAR v Chau Man Ying CACC 439/2011 where the premises concerned were almost derelict, with property of the developers inside which, in that case, involved some money and also cameras and mobile phones.  The Court of Appeal said in that case that:

“With respect, a sensible exercise of discretion on the facts of this case would have resulted in a prosecution in the Magistrates’ Court.”

Eventually they settled on a sentence in the region of 12 months’ imprisonment.

10.Comparing this case with the case of Chau Man Ying, this is not an abandoned building.  It was also broken into, with the metal hasp being broken.  However, the items taken were clearly of less value than that in Chau Man Ying.

11.Having considered all the factors relating to this premises and the nature of this burglary, I consider an application of the normal guideline sentence would be inappropriate here.

12.After determining all the factors, I will take a sentence in this case of 15 months’ imprisonment.