HKSAR v. Christopher Okechi Nwosu

DCCC 102/2021

[2021] HKDC 1077

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2021

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REASONS FOR SENTENCE

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1.The defendant has been convicted of two charges after trial, namely, burglary and failing to surrender to custody without reasonable cause.

Charge 1: Burglary

2.The defendant had been expressly been prohibited from entering the building at the material time.  Police had been called to evict him from the roof top of Fu On Mansion.

3.On 9 August 2020, the defendant removed a Notice which had been posted on the wall of the lift since 7 August 2020.

4.The Notice informed the residents to call 999 that if he was seen inside the building.

5.The cost for the production of the Notice was $20.

Charge 2: Failing to surrender to custody without reasonable cause

6.The defendant was arrested in the building on 13 August 2020.  He was brought to court on 14 August 2020.  The case was adjourned to 25 September 2020 which was subsequently adjourned to 23 October 2020.

7.At the meantime he was granted bail on 21 August 2020.

8.The defendant did not turn up on 23 October 2020.

9.On 20 November 2020, the defendant appeared for another case in the West Kowloon Magistracy in the morning.  He subsequently appeared in the afternoon with the representation of the duty lawyer, the warrant of arrest had not yet executed.

Criminal record

10.The defendant has 6 court appearances with 9 convictions.  The 2 last convictions were subsequent to his arrest of the present offences.  Between 2010 to 2017, the defendant committed a range of offences from possession of dangerous drugs, pervert the course of public justice, assault occasioning actual bodily harm, handling stolen goods and attempt obtaining property by deception.  He received sentences from 2 months to 2 years imprisonment.  He also has one record of “warrant executed” in 2020.

Mitigation

11.The defendant is now aged 38.  He came to Hong Kong from Nigeria in 2007.  He is an asylum seeker and a form 8 holder.  He has a 9-year old daughter who lives in Indonesia with his girlfriend.

12.The defence submitted that the Notice worth $20, it was of very little value.  There were no tools involved.  It was foolish on the part of the defendant as there was no resale value or pecuniary gain from stealing the Notice.

13.The defendant’s father passed away in early July this year.  It was a sad time for the defendant as he would not be able to attend his funeral on 25^th August 2020.

Sentence

14.The sentencing guideline for committing a burglary offence in a domestic and non-domestic building are 3 and 2.5 years respectively.  R v Wong Man Cr App 372 of 1992 and R v Chan Yui Man Cr App 36 of 1998.

15.As to the present case, the burglary offence took place in a lift of a domestic building.  The prosecution referred to this Court of HKSAR v Suen Chi Wai CACC 90/2015 that the Court of Appeal held that the starting point of a common area of a domestic building was 2.5 years.

16.I also referred to the parties that in HKSAR v Law Tin Yam CACC 258/2010 which involved a burglary into a cubicle of a flat in Sham Shui Po and the applicant took away a packet of cigarettes.  The Court of Appeal considered that a starting point of 15 months would be appropriate.  That means the stolen item has a bearing in passing sentence on the defendant.

17.In present case, the common area is a lift and the stolen items was a piece of paper which worth $20.

18.The defendant was a squatter in the building.  He took shelter on the landing of the staircase to the roof top.

19.That piece of paper was a Notice to inform the residents to call 999 when they saw him in the building.

20.At the material time, the residents saw him took away the Notice.  Those residents did not appear to be frightened by his presence.  Nonetheless, they considered him as an intruder to their building and informed the watchman about the incident.

21.The defence in mitigation said that there was no monetary gain from stealing the Notice, but in reality there was a personal benefit to the defendant.  There is a prolonged effect after the stealing of the Notice as the defendant continued to take shelter on the rooftop landing until he was arrested on 13^th August 2020, that covered a period of 5 days.

22.It was a calculated move on his part.  This kind of conduct cannot be condoned as the residents in the private property are entitled to enjoy peace and quiet without the invasion of the defendant to their property.

23.In any event, it was different from the case of Suen Chi Wai.  I took into account that there is no damage being done to Fu On Mansion or caused any harm to the residents, the defendant was acting alone. There was no violence involved and the Notice costs HK$20.

24.With this background in mind, I consider that a sentence of 12 months is appropriate for the burglary charge.

25.As to the data showed by the prosecution that in the year of 2020, there were 36 cases of burglary committed by non-ethnic Chinese on recognizance as compared to 17 cases in 2019, there was an increase of 118.8%.  The percentage of total arrested non-ethnic Chinese on recognizance, Nigerian was 1.2%.

26.The present case was a burglary in the technical sense.  It is different from the usual burglary cases.  As such, I will not rely on this data to enhance the sentence.

27.However, as to his status in Hong Kong is a Form 8 holder seeking asylum, there are many cases to say that the fact that the defendant was allowed to stay in Hong Kong as a torture claimant chose to commit criminal offence affecting the order and security of Hong Kong was a blatant abuse of the goodwill and good intention of the people of Hong Kong.  I referred to Shah Syed Arif CACC 298/2015.

28.Coupled with the fact that he does not have a clear record, to this extend, I considered that another 3 months’ enhancement is appropriated, which arrives at a total sentence of 15 months for Charge 1.

29.As to Charge 2, the maximum sentence is one of 12 months.

30.The defendant failed to attend court on the appointed day on 23 October 2020.  He attended court for another case on 20 November 2020.  On this occasion, he informed the court about his absence on 23 October 2020.

31.In view of the time that he surrendered to court within one month and the warrant was not executed, I considered a 3 months’ sentence for the second charge is appropriate.

32.Both charges were distinct and separate offences.  I ordered them to run consecutively to each other.

33.The defendant is to serve a total sentence of 18 months for Charges 1 and 2.