HKSAR v. Mahmood Azhar

DCCC 820/2021

[2021] HKDC 1645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 820 OF 2021

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REASONS FOR SENTENCE

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Charges

1.The defendant acts in person in court after he has been refused legal aid.  He indicates to the court that he is prepared to act in person and fully understands the procedures explained to him by the court.

2.The defendant pleads guilty to two counts of burglary which occurred at different restaurant premises on two consecutive days in late January 2019.

Facts

Charge 1

3.On 28 January 2019, at around 2:12 am, the defendant forced open the locked front door of a restaurant in Sham Shui Po.  He stole therein HK$2,000, a tablet computer valued at HK$1,000 and two towels valued at HK$10 in total. The defendant then left the premises, but he left his fingerprint on the front door. 

Charge 2

4.A day later, ie 29 January 2019, the defendant burgled into another restaurant premises, also in Sham Shui Po.  The owner of that restaurant just pulled close the roller shutter of the rear entrance because the lock there was not functioning. 

5.The defendant entered the restaurant and stole therein a total of about HK$10,000 by prising open the cashier’s drawer and iron box. 

6.The defendant was arrested on 26 February 2019.

7.The defendant admits the two counts of burglary as charged in court.

8.The prosecution informs the court that the defendant was, in fact, last sentenced on 30 October 2019 in District Court case DCCC 720/2019.  That case was related to one count of burglary which also occurred at a restaurant premises, and one count of possession of dangerous drugs.  Those two offences were committed on 2 January 2019 and defendant was arrested on that day.  He was given police bail since then.  20-odd days later, the defendant committed the current two burglary offences on 28 and 29 January 2019 respectively. 

9.The case DCCC 720/2019 was proceeded on its own and expediently.  The defendant was sentenced in the District Court on 30 October 2019 by Deputy Judge Chan to a total term of 2 years and 10 days’ imprisonment. Actually, the defendant was given 2 years’ imprisonment on the burglary charge and 20 days’ imprisonment on the possession of dangerous drug charge, with 10 days of which to run consecutively to the burglary sentence.

10.The prosecutor tells the court that the current two burglary offences were not proceeded with DCCC 720/2019 at that time.  Rather, the defendant was being investigated by the police for those two burglary offences and seven other similar allegations.  The process was of such massive investigation took time.  Finally, the Department of Justice concluded that only the current two burglary offences were to be laid against the defendant, while the other seven allegations against him were dropped.  The defendant was thus charged with the current two burglary offences in June 2021.

Record

11.The defendant was born in Pakistan in August 1981.  He is 40 years old now.  He came to Hong Kong in 2007 to seek asylum. 

Mitigation

12.The prosecutor informs the court that the defendant was a Form 8 holder when he committed the current two offences.  But later the Immigration Department rejected his application. 

13.According to the defendant’s criminal record, he has seven previous convictions between the years of 2009 and 2019.  Two of these convictions were for theft in 2011, two were for burglary in 2016 and 2019 respectively.  The defendant finished his sentence for the latter one in DCCC 720/2019.  He came out of the prison on 13 December 2020.  Since then he has been remanded in custody by the Immigration Department, and later by the Correctional Service Department after he was charged with the current offences.

14.The defendant says he was married to a woman in Hong Kong.  He has a stepdaughter of age now.

15.The defendant says his wife has been unemployed and is assisted by her mother for a living.

16.The defendant says his wife feels disturbed by his absence from home. He asks for leniency from this court so that he can be released as soon as possible to be reunited with his wife. 

Sentence

17.In the present case, both burglaries occurred at non-domestic premises. They were restaurants.

18.The defendant was a Form 8 holder when he committed the two offences. He had past records of theft and one burglary when he committed the current two offences.  After that, he had another burglary conviction in DCCC 720/2019. Actually, the defendant was on police bail for that last burglary offence.  He was arrested on 2 January 2019 for that matter.  He was given bail by the police. Yet he committed the current two offences 20-odd days later in late January 2019 on two consecutive days.

19.All the above are aggravating factors.  The three aggravating factors each calls for an enhancement of 3 months’ imprisonment. 

20.The starting point for non-domestic burglary is 2½ years’ imprisonment. After enhancement, the starting point for each of the two current offences should be 3 years and 3 months’ imprisonment.

21.The defendant pleads guilty to the current two offences in good time. He is entitled to one-third discount for his plea.  So if the defendant is to be sentenced in normal circumstances, the sentence to be imposed for each count ought to be 26 months’ imprisonment. 

22.However, the prosecutor rightly reminds the court that the court should take into account the 2 years and 10 days’ imprisonment the defendant had served in DCCC 720/2019 because that case could have been dealt with together with the current two offences due to the proximity of their occurrence.  But unfortunately, they were not.

23.If the current two burglary offences were dealt with at the same time with DCCC 720/2019, the total starting point for the three counts of burglary ought to be one of 4½ years’ imprisonment.  After plea, the total sentence for plea on the three counts of burglary ought to be 3 years’ imprisonment. 

24.Now that the defendant had already served 2 years for the sole offence of burglary in DCCC 720/2019, I thus have to adjust the current sentences to be imposed for the two burglary offences in the present case.  I only adopt 15 months’ imprisonment for each charge in this case as the starting point.  After one-third discount for the defendant’s plea of guilty, the sentence for each count in the present case is 10 months’ imprisonment.  I order 2 months’ imprisonment of Charge 2 to run consecutively to the 10 months’ imprisonment imposed in Charge 1, so that the effective sentence of the two current offences upon the defendant’s plea is one of 12 months’ imprisonment, which added to the 2 years’ imprisonment imposed on him for the single burglary charge in DCCC 720/2019, it would be 3 years altogether for the plea of the three counts of burglary which should have been dealt with together.