HKSAR v. Mehmood Tariq

DCCC 895/2021

[2022] HKDC 324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 895 OF 2021

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REASONS FOR SENTENCE

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Charge

1.The defendant, a Form 8 recognizance holder, pleads guilty to one charge of burglary committed at a school in Sham Shui Po.  He admitted the following facts.

Facts

2.In summary, Ms Lee was the executive officer working at the school.  The school parameter was surrounded by a wall with spikes at the top.  There was a container-like security guard booth (the booth)  next to the school building, behind the school wall and the vehicular gate. The school was opened between 8:00 am and 5:30 pm from Monday to Saturday.

3.At 5:30 pm on 7 August 2020 (Friday), Ms Lee left the school after having checked that everything was intact.  As usual, the door to the booth was slightly opened.  At 7:45 am on 8 August 2020 (Saturday), she returned to the school and found that the booth door was widely opened and the booth was ransacked.  She found that the remote control for the vehicular gate (valued at HK$500)  was stolen from the booth.  A report was made to the police.

4.The CCTVs of the school captured that at 1:50 am on 8 August 2020, the defendant, carrying a backpack, was wandering outside of the school’s pedestrian gate.  He was drinking from a can and did not wear a mask.  Several minutes later, he stepped on a motorcycle that was parked on the roadside and climbed over the school wall.  He walked towards the booth.  A minute later, he walked away from the booth.  He then walked across the playground and entered some covered areas of the school.  Minutes later, he walked back towards the school wall.  His right palm print was found on top of a desk inside the booth.

5.Almost a year later, on 13 July 2021, the defendant was arrested and he was found to be a Form 8 holder.  In a video recorded interview, the defendant, in the presence of interpreters, admitted under caution that (a)  he used to walk by nearby park and restaurant; (b)  at the time of the offence he walked by the entrance of the school; and (c)  he entered the schools’ security room.

Defendant’s background

6.The defendant was born in 1974, now aged 48.  He has a total of 10 previous criminal convictions, 6 of which were theft offences.  His last convictions related to 2 offences of indecent assault and he was sentenced to a total of 2 months’ imprisonment on 23 May 2016.

Mitigation

7.Mr Delaney, Counsel for the defendant, states in his written mitigation that the defendant has a wife and 4 children (between 14 and 17 years old)  all living in Pakistan.  The defendant received no education in Pakistan before coming to Hong Kong in 2007.

8.In respect of the offence, Mr Delaney submits that the subject premises is clearly not a domestic dwelling.  At the time of the offence, the container was not locked and indeed it was open slightly.  The defendant acted alone and was in the container for no more than a minute.  The burglary was a random, opportunistic and impulsive criminal act.  The item stolen, a remote control, is of no use to the defendant and itself of modest value ($500).  There was no planning needed and no use of or possession of any tool or indeed any need to use force.  There is no suggestion that any damage was done to the booth or contents.  It was an utterly unsophisticated criminal act and must rank at the lowest point of criminality on the scale of appropriate sentence for burglary.

9.Mr Delaney also submits that it was the first time that the defendant appeared in the District Court.  His past previous convictions do not aggravate this offence and no enhancement of sentence is justified.

10.After arrest of the present offence, the defendant did not contest the allegation and has cooperated with the police, prosecution and court at all times and throughout the proceedings.  He pleads guilty to the offence at the earliest opportunity. 

11.Mr Delaney refers this court to (i)  R v Wong Man [1993] 1 HKC 80 in which the Court of Appeal stated that the starting point for burglary in relation to non-domestic premises is 2 ½ years’ imprisonment; and (ii)  Hong Kong Archbold 2022 – Vol 1, 5-537 which summarizes the approach of the courts in sentencing for this offence. 

12.Mr Delaney is provided with 3 authorities namely HKSAR v Sandagdorj & Another [2014] 1 HKC 206, HKSAR v Raman Kumar (CACC 324/2017, date of judgement 1 March 2018)  and HKSAR v Muhammad Schebaz (CACC 133/2021, date of judgement 18 October 2021).

13.Mr Delaney agrees that the court can enhance the sentence given the status of the defendant.  However, he urges this court not to enhance the sentence as there are exceptional circumstances in this case, in particular, that the defendant signed a declaration this morning.  The defendant wrote in the declaration:

“I hereby renounce my Form 8 status absolutely and immediately. I hereby request the department to deport me as soon as possible.”

14.It is noted that the declaration was signed today just before the present proceedings commenced.

Reasons for Sentence

15.In passing sentence, I take into account everything said by Mr Delaney on behalf of the defendant.  I also look at the still images captured by the CCTV.

16.The correct starting point for non-domestic burglary is 2 years and 6 months’ imprisonment as laid down in R v Wong Man [1993] 1 HKC 80 and Attorney General v Lui Kam-chi [1993] 1 HKC 215.  Besides, in HKSAR v Sim Ka Wing CACC 450/2000, date of judgment 30 May 2001, Keith JA said:

“9. The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

Starting point

17.Having considered all the circumstances of the case, in particular, the fact that the defendant was captured by the CCTV that he was, without wearing a mask, wandering outside the School and was drinking from a can; he stepped on a motorcycle which did not belong to him and which was parked on the roadside in order to climb over the school wall; that the booth was slightly opened before he entered therein; that the value of the stolen property was relatively small; and the admissions he made, I am satisfied that he was an opportunistic burglar.

18.As such, I am minded to adopt a lower starting point as opposed to 2.5 years (30 months)  the usual starting point for non-domestic burglary.  Here, I adopt 21 months’ imprisonment as the starting point for this offence.  However, the matter does not end here.

Aggravating feature

19.There is no dispute that the defendant was a Form 8 holder at the time of the offence. This is an aggravating factor for sentence.  In HKSAR v Sandagdorj & Another [2014] 1 HKC 206, Macrae J as he then was said that the commission of offences by refugees or torture claimants which has the effect of tarnishing this City’s reputation for order and security is a factor which is capable of aggravating the sentence for the crime (see also: HKSAR v Raman Kumar para 20).

20.In a recent case HKSAR v Muhammad Shehbaz, the appellant admitted to having committed a burglary of residential premises.  The judge adopted a starting point of 3 years which he enhanced by 6 months for the aggravating factors that the offence was committed in the early hours of the morning when the victim was at home; the applicant was a repeat offender; and he was a Form 8 recognizance holder at the time of the offence.  Zervos JA said that the enhancements were completely justified and consistent with relevant sentencing principles. 

21.I am satisfied that the present offence affects the community at large and has a significant impact of Hong Kong’s reputation for order and security.  Although the defendant signed the aforesaid declaration this morning, still he was a Form 8 holder at the time of the offence.  Therefore, I consider it right to enhance the sentence.  I am also satisfied that an enhancement of 3 months to 24 months’ imprisonment is appropriate for the aggravating factor and is not disproportionate to the culpability of the defendant.

22.Regarding his previous criminal convictions, I note that 6 of which are theft offences. Notwithstanding that the present offence is a dishonesty offence, I will not enhance the starting point for sentence.  It is because the defendant was last sentenced for theft (pickpocketing)  in 2015, 7 years from now.  Other sentences he received for the theft offences were a fine and a short prison term ranging from 1 day to 8 weeks (between 2012 and 2014).

Discount of sentence

23.Since the defendant has pleaded guilty to the offence, he is entitled to a full one-third discount of sentence. There exists no other mitigating factor.

Conclusion

24.Accordingly, the defendant is sentenced to 16 months’ imprisonment for the present offence.