HKSAR v. Khan Shoukit Abbas

DCCC 136/2021

[2021] HKDC 535

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 136 OF 2021

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REASONS FOR SENTENCE

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1.Upon his own pleas of guilty and admission of the facts, the defendant was convicted of two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

The facts

2.Lam Kwok Chau, PW1, was an air-conditioner technician and was responsible for the air-conditioning installation at Prince Café, Ground Floor, No 479 Nathan Road, Mong Kok, the shop, in August 2020. 

3.On 14 August 2020, PW1 put five condensers, two ducted air-conditioners, a toolbox containing some tools and two platform carts in the shop.  The total value of these items was HK$51,600.

Charge 1

4.PW1 knew that the renovation worker had locked the two entrances of the shop when they left at around 12.30 am on 31 August 2020 when the said items were still in the shop.  PW1 was later informed that the lock at the main entrance went missing.  He returned to the shop at around 1 pm on the same day and found that four condensers, a ducted air-conditioner, the toolbox containing tools and a platform cart were missing.  The case was reported. 

5.The CCTV footage at the vicinity captured the following events:-

(a)  the defendant carried two big boxes away using two platform carts from the shop through the main entrance at 3.06 am on the same day;

(b)  the defendant returned to the shop with a platform cart at 3.22 am on the same day; and

(c)  the defendant carried another two big boxes away using one platform cart from the shop through the main entrance at 3.27 am on the same day.

Charge 2

6.After the above incident, a replacement lock was used at the main entrance.  PW1 knew that the owner of the shop had ensured all the entrances were locked at around 2.30 am on 1 September 2020.  At around 8.30 am on the same day, a condenser, a ducted air-conditioner and a platform cart were found missing from the shop. 

7.On 4 September 2020, the defendant was arrested.  A written cautioned interview was conducted with the defendant who admitted stealing air-conditioners from the shop out of momentary greed. 

8.In a subsequent cautioned video-recorded interview, the defendant admitted that:-

(a)  he went to the shop on 31 August 2020 and 1 September 2020 to steal air-conditioners;

(b)  he stole four air-conditioners on 31 August 2020;

(c)  he stole one air-conditioner on 1 September 2020;

(d)  he sold the air-conditioners in Sham Shui Po for about HK$5,000 in total;

(e)  he has spent all the proceeds; and

(f)  he entered and left the shop through the rear entrance on 1 September 2020.

The defendant’s background

9.The defendant was born in 1975 in Pakistan but with a Hong Kong identity card.  He is unmarried and unemployed.  He has five previous criminal convictions, three of them were theft-related.  His last conviction was one of possession of dangerous drug for which he was sent to the DATC in November 2020 which offence was committed after the current offences. 

Mitigation

10.As submitted by the defence, Mr Raffell for the defendant, the strongest and clearest mitigation in this case is his early plea of guilty.  It was submitted that the first offence was an opportunistic entry and he went back the next day and took another air-conditioner.  It is therefore submitted on that basis that the case should warrant a concurrent or partly concurrent sentence as the defendant could have, as it was submitted, stolen all the property on the first occasion. 

11.It is also submitted that there were no serious aggravating features apart from the repetition issue in this case.  It involved burglary of an empty premises where no person had been alarmed or put in fear. 

12.The defendant claimed that he committed the current offences partly because of an accident of his son which resulted in his death and money was required for the funeral.  He also claimed to have issues with drugs and accepted that had played a part in his commission of the current offences.  He had recently completed a term in the Drug Addiction Treatment Centre in relation to an unrelated case and he claimed to have very positive effect and now he is confident that he can refrain from committing crimes because of drugs. 

13.It is submitted that an appropriate starting point would be no more than 30 months and he should be given a one-third discount for his early pleas. 

The sentence

14.Burglary is a serious offence with a maximum penalty of 14 years’ imprisonment.  There are clear sentencing guidelines established by the Court of Appeal.  For a first offender of full age, the correct starting point for burglary of non-domestic premises is 2½ years (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  I am not convinced that the offences committed by this defendant were opportunistic in nature.  It could be so regarded if there involved a sneak thief entering open premises, but here, the defendant had to break or temper with the door lock on both occasions before he could gain entry into the shop.  His act could hardly be regarded as opportunistic. 

15.Although the defendant had a few previous criminal convictions and one of them was a burglary and two were theft-related, I do not consider him to be a repeat offender and therefore would not enhance his sentence for that reason.  Nevertheless, I do not consider his reasons for committing this offences, namely, to get money for his son’s funeral and to take care of his drug problem (which is now no longer a problem after his DATC treatment for an unrelated drug offence), even if true, would not constitute a valid or significant mitigation.  I am therefore prepared to adopt the usual starting point of 30 months’ imprisonment for each charge. 

16.A full one-third discount would be given for the defendant’s early plea of guilty.  The sentence for each of Charges 1 and 2 should be one of 20 months’ imprisonment. 

17.The final matter is one of application for totality principle.  The two offences, in my view, cannot be regarded as a continuing offence or one transaction.  For committing the second offence, the defendant have to go back to the same shop on the following day and had to go through another entrance which was also locked.  As such, the two offences are separate offences and in principle, the sentences could be ordered to run consecutively but that would lead to a disproportionate punishment.

18.Applying the totality principle, I order 3 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, which results in the total sentence of 23 months’ imprisonment.