HKSAR v. Muhammad Ilyas

DCCC 960/2017

[2018] HKDC 598

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2017

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REASONS FOR SENTENCE

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1.This is a case of non-domestic burglary. The defendant, a Form 8 holder, was convicted after trial of one count of burglary.

2.Madam Cheng, who rented a mezzanine floor unit in Cheung Sha Wan area for the storing of goods, has sublet the premises to a Mr. Wong, a decorator, for him to store his trade tools there.

3.The unit is secured by a locked wooden door and an iron grille with a padlock. In the evening on 27 August 2017, Madam Cheng paid a visit to the unit. To her dismay, she saw the defendant, a total stranger, inside the unit through the opened door. After a few exchanges between them, the defendant slammed shut the door and locked himself in.  

4.Police were called. Attending officers knocked on the door but the defendant did not open, and they then decided to lie in wait for him outside. About half an hour later at around 8:39 p.m., the defendant came out of the unit with a traveller’s bag in his hand.

5.Upon seeing the police, the defendant immediately turned around and hurried back into the unit but was stopped by the officers in the doorway.  In his bag, the officers found an electric drill, a nailer, a grinder, a heat gun and 3 screwdrivers, which were later identified to be Mr. Wong’s property.

6.Police investigation revealed that there was a broken lock lying on the table which was found to fit the wooden door lock. As can be seen from the photographs, the wooden door lock was clearly damaged. Obviously, someone had broken into the unit.

7.The defendant once said both the door and the grille were opened. Madam Cheng told the court that her previous visit to the unit was on 12 August that was about 12 days before. Could someone beat him to it to burgle the unit first and then left the door and the grille wide open for any subsequent opportunist like the defendant to steal?

8.I have given it some serious thought and eventually ruled out such possibility. The reason is very simple, if some thief got in before the defendant, I would not expect any such saleable tools like those stolen by the defendant to have remained in the premises anymore – they would have long gone for these tools were very attractive to thieves. My conclusion is the defendant was no opportunist.  

9.The defendant, aged 48, a married man with two children – a son (14) and a daughter (9). All his other family members are in Pakistan.

10.The defendant told the court that he came to Hong Kong in 2003 legally on the strength of  a valid visa, but overstayed thereafter and sought asylum here, so he is now a torture claimant.

11.He is not a person of clean record who has amassed 8 prior convictions over the past 14 years since 2004, the majority of them are immigration offences such as breach of condition of stay or illegal remaining, only one of them is theft for which he was given a 4-month prison term in 2006. His last conviction is in 2013 – he was sentenced to 15 months’ imprisonment for illegal remaining.

12.He did not have much to say by way of mitigation except telling the court that he is a hard-working and honest person, he never steals and the allegations in this case are all false.

13.There are sentencing guidelines for this type of offence – for non-domestic burglary, the usual term for consideration is one of 30 months in the absence of any aggravating features.

14.Based on the facts of the case, I take 30 months as starting point. Furthermore, there is, in my view, an aggravating factor in that the defendant was a Form 8 holder when committing the offence of burglary which is a serious offence.

15.The higher court often said that offenders like the defendant who is a torture claimant have abused the goodwill and hospitality of the people of Hong Kong by committing serious offences while they are permitted to remain at liberty for processing their application- that constitutes an aggravating factor. In view of his immigration status, I add 3 months on top to take the starting point to 33 months.

16.As the defendant is convicted after trial, there being no discount for plea of guilty, he is therefore sentenced to 33 months’ imprisonment.