HKSAR v. Mahmood Azhar

DCCC 720/2019

[2019] HKDC 1475

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 720 OF 2019

----------------------------

----------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

CHARGES

1.The defendant, a Form 8-holder, pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (“Charge 1”) and one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (“Charge 2”).

2.The particulars of the offence of Charge 1 are that the defendant, on the 2 January 2019, in Hong Kong, having entered as a trespasser of a building known as Ground Floor, No 245 Ki Lung Street, Sham Shui Po, Kowloon (hereinafter referred to as “the Restaurant”), stole therein cash of about HK$1,100 and one monitor.

3.The particulars of the offence of Charge 2 are that the defendant, on the 2 January 2019, at the rear lane, No 147 Yee Kuk Street, Sham Shui Po, Kowloon, in Hong Kong (hereinafter referred to as “the Lane”), had in his possession a dangerous drug, namely 0.39 gramme of cannabis resin (hereinafter referred to as “the Cannabis”).

FACTS

4.The facts upon which the defendant admitted to revealed the followings:-

(1) Around 10 p.m. on the 1 January 2019 the staff of the Restaurant secured its main gate and rear doors of the Restaurant before they departed from there. At around 6:30 a.m. the following day, when the owner of the Restaurant returned, it was discovered that the rear doors of the Restaurant had been prized open with signs of ransacking therein. Cash of HK$1,100 and a monitor valued at HK$700 were found missing. CCTV captured the defendant entered the Restaurant via the rear doors at around 2:20 a.m. on the 2 January 2019 and forcibly opened the drawer using an iron bar. The cash and monitor in question were taken by him.

(2) The defendant was intercepted by the police at around 7:20 a.m. on 2 January 2019 at the Lane. Upon search by the police it was found on the defendant’s person (i) the said monitor and (ii) a pellet of the Cannabis.

(3) The defendant is a Form-8 Recognizance holder.

MITIGATION

5.Mr Boyton had prepared a written submission in mitigation on behalf of the defendant.  He further supplemented the same orally today.

6.This court was told that the defendant, a 38-years-old married man, was born in the Pakistan.  He was educated up to Secondary 3 level in Pakistan.

7.The defendant was married to a Hong Kong lady.  They lived together with their 7-years-old daughter in Sham Shui Po.  They were supported financially by the defendant’s mother-in-law since 2012.

8.Mr Boyton confirmed that the defendant had 6 previous criminal convictions; amongst them were a burglary conviction in 2016 and a possession of dangerous drugs conviction in 2019 (WKCC 371/2019) (hereinafter referred to as “the 2019 Dangerous Drugs Case”).

9.This court was told that the 2019 Dangerous Drugs Case was committed by the defendant on 28 November 2018.  Mr Boyton fairly accepted that the defendant committed the offences in the instant case whilst on bail.

10.Insofar as mitigation is concerned, aside from the remorse demonstrated by the defendant’s guilty pleas, Mr Boyton drew the attention of this court to the fact that the last set of sentences received by the defendant were in relation to (i) the 2019 Dangerous Drugs Case and (ii) a common assault case (WKCC 1814/2019) (hereinafter referred to collectively as “the Two West Kowloon Magistracy Cases”).  A total of 5 months’ imprisonment were imposed on the defendant on the 17 May 2019 for the Two West Kowloon Magistracy Cases.  Mr Boyton submitted that if these two case were heard together with the instant case, a court will have to consider an order that some of the sentence be served concurrently or partially concurrent.

SENTENCE

11.Insofar as Charge 1 is concerned, as the Restaurant is a non-domestic premises, this court will adopt a basic starting point of two and a half years’ imprisonment.

12.The said starting point of Charge 1 will be enhanced for an additional 3 months to reflect the aggravating factor of the defendant’s Form-8 status at the time when the offence was committed.

13.As the defendant committed this offence whilst on bail, this court will further enhance the said starting point of Charge 1 for yet another 3 months.

14.This court has considered the issue of enhancement on the ground of the defendant being a repeated offender.  As this is the second burglary of the defendant, this court will make no enhancement of sentence on this ground.

15.The defendant is entitled to a full 1/3 discount as a result of his timely guilty plea.

16.Thus, for Charge 1, this court will impose a sentence of two years’ imprisonment.

17.As for Charge 2, simple possession of dangerous drug with the same nature and similar quantity as the one in Charge 2 would normally attract a fine.  After consideration of the defendant’s position of being imprisoned, his Form-8 status at the time of his commission of the offence, the fact that the defendant committed this offence whilst on bail and his previous records, this court will after deduction for his plea of guilty impose a sentence of 20 days’ imprisonment.

18.Charges 1 and 2 are separate and distinct offences with different criminality for which wholly consecutive sentences are appropriate.  However, having considered the circumstances of the instant case, the sentences received by the defendant in the Two West Kowloon Magistracy Cases, the totality principle as well as submissions made by Mr Boyton, this court is satisfied that 10 days’ imprisonment in Charge 2 can run concurrently with the sentence in Charge 1.

ORDER

19.For Charge 1 the defendant is sentenced to a term of 2 years’ imprisonment.

20.For Charge 2 the defendant is sentenced to a term of 20 days’ imprisonment.

21.10 days’ imprisonment in Charge 2 to run consecutively to the sentence in Charge 1.

22.Total sentence of the defendant is therefore 2 years and 10 days’ imprisonment.