HKSAR v. Sohail Muhammad

DCCC 206/2022

[2023] HKDC 87

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 206 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one charge of Burglary.

2.At all material times Love Delivery (Hong Kong)  Limited was a food delivery service company located at 8^th Floor, CCF Building, 105 Wai Yip Street, Kowloon Bay, Kowloon.

3.Defendant started working for the company as a part-time driver on 1 June 2021 and became a full-time driver in mid-June 2021.  His duties included picking up vehicle keys at the office every morning and returning the same to the office after work every day.  He would wait at the office between delivery orders and had frequent access to the office.  He was told of the office entrance door code.  He resigned from the company on 20 July 2021.  The door code was not changed after his termination of employment.

4.Several company drivers were of South Asian ethnicity.  Ms. Chow, the human resources manageress of the company, was able to recognise every one of them.

5.At about 9 am on 20 August 2021, Ms. Chow and her colleague Mr. Ip discovered that the following properties had been stolen from the office:

a. HK$540 cash belonging to the company previously kept in a pencil case in a desk drawer;

b. 3 mobile phones each valued at $2,500 belonging to the company previously left on the desktops; and

c. 1 pair of earphones valued at $500 belonging to Mr Ip previously left on a chair.

The matter was reported to the police.

6.Closed circuit television system of the company captured the followings:

a. At about 3.10 am on 20 August 2021, a person wearing black cap, white T-shirt and black long trousers (“Person A”)  used his knuckle to enter the door code and gained entry to the office together with another person (“wanted person”);

b. in the office, Person A and the wanted person looked around at the desktops, searched various desk drawers, a jacket on desktop and a bag on a chair;

c. the wanted person took some banknotes from a pencil case and three mobile phones from the desktops, and later put them into a bag that he was carrying;

d. Person A left the office, followed by the wanted person a short while later. Person A and the wanted person stayed inside the office for about two and a half minutes.

7.Having viewed the CCTV footages, Ms. Chow confirmed that Person A was Defendant for:

a. Person A’s build, sideburns, the way he walked with his hands in the pocket and the way he carried himself conformed to those of the Defendant’s; and

b. Defendant had worn the same outfit when he worked for the company.

8.On 23 September 2021, Defendant was intercepted and arrested for the present offence.  Upon arrest, he remained silent under caution.  Later on the same day, the police conducted a video-recorded interview with the Defendant. In the interview, Defendant claimed amongst other things that:

a. he was at home sleeping at the material time;

b. he had previously worked for the company, but could not remember the dates; and

c. he did not know the door code to the office.

9.On 22 December 2021 and 28 December 2021, police invited the Defendant to take part in identification parade.  Defendant declined on both occasions. On 31 January 2022, police organised a photo identification procedure in which photographs of 12 actors mixed with one photo of the Defendant were shown to Ms. Chow. Ms. Chow picked out the Defendant’s photograph amongst the 13.

10.All stolen properties are yet to be recovered.

11.Defendant now admits that at about 3.10 am on 20 August 2021, he together with the wanted person, having entered the company office as trespassers, stole from there HK$540 cash, 3 mobile phones and 1 pair of earphones.

Criminal record

12.The Defendant has two previous convictions involving two non-similar offences.

Mitigation

13.The Defendant now aged 26 was originally from Pakistan.  He arrived in Hong Kong in 2008 to join his family.  He is married, but his wife remains in Pakistan.  He resides with his parents in a public housing unit.  In Hong Kong, he received education up to secondary 4 level.  He worked in various jobs as a delivery worker and on construction site.  Between June and July 2021, he worked as a delivery driver for the victimised company.

14.He has two previous convictions involving non-similar offences.  He has no previous conviction for dishonesty.  The last sentence of imprisonment received by him on 25 January 2022 had been fully served.  The present offence is a separate and distinct offence.

15.As the burglary was of a non-domestic premises, the proper starting point in a case of burglary of non-domestic premises is 2 years 6 months’ imprisonment after trial[1]. His guilty plea exhibited his remorse and saved time, expense and inconvenience to witnesses.  He gave notice of election to plead guilty at an early opportunity.

16.The offence was not sophisticated and the value of the stolen property was not large. 

17.The Defendant was unemployed at the time of the offence and in a poor financial condition. 

18.Although the offence was not committed by him alone, the Defendant did not profit from the offence and all the stolen property was removed from the company by his accomplice.  The Defendant has supplied the identity of the accomplice, that is the accomplice’s name, to the police.  However, according to the prosecution, the police have no such record.  The Defence accepts that as the matter cannot be confirmed, the Defence no longer relies on this as part of the mitigation.  And the Defendant has been in custody since his arrest.

19.A mitigation letter written by the Defendant was also submitted to the court for consideration. 

20.The Defendant’s parents are in court today to support him.

21.The Defence also informed the court that the Defendant has sufficient funds to fully compensate the victimised company and Mr. Ip for their losses.

Sentence

22.I have carefully considered everything said on behalf of the Defendant by Mr. Richmond in mitigation.  As rightly pointed out by the Defence, it is well established that the proper starting point in a case of burglary involving a non-domestic premises is 30 months’ imprisonment. 

23.The starting point can be adjusted upwards if there are aggravating features such as:  (i)  the offence is carefully planned and skilfully executed involving the use of heavy equipment or instrument; (ii)  the offence is committed by two or more people; (iii)  the offence targets at substantial premises and involves substantial properties; (iv)  the offender has previous convictions, particularly previous conviction of similar nature; and (v)  the offender commits multiple offences (see HKSAR v Cheng Wai Kai[2]).

24.The Defendant has no similar conviction.  I also note that he had been dealt with by way of either a fine or a short term of imprisonment for the two previous convictions.  In view of the nature of the said sentences being relatively minor, I do not consider his previous convictions as an aggravating factor in relation to the present offence.

25.The Defendant in his mitigation letter claimed that it was his friend, that is the accomplice, who suggested to burgle the office.  Even if the offence was committed at the suggestion of the other person involved, I am of the view that they share an equal culpability. 

26.The Defendant also claimed in his letter that after searching the office for a while, he left the office as he did not want to take part in the offending activity.  He saw his accomplice coming out of the office with the stolen properties, but he did not profit from them.  Mr. Richmond clarified that the Defendant meant to say that he lost his nerve during the course of the commission of the offence and therefore exited first.  Mr. Richmond accepts that the Defendant had committed the full offence.  I reject the said claims.  Firstly, according to the facts admitted by the Defendant, by the time he left the office, his accomplice had already put some of the stolen properties into the bag that his accomplice was carrying.  If, as alleged, he had lost his nerve during the commission of the offence, I find it unreasonable that he had also chosen to stay outside and wait for his accomplice coming out with the stolen properties.  Secondly, in my view, the fact that he had waited outside for his accomplice clearly shows that he wanted to continue to take part in the offence and gain from the stolen properties.

27.The fact that the present offence was committed by the Defendant jointly with another person is clearly an aggravating feature.  They burgled the office in the small hours also suggested some degree of planning which is another aggravating feature. 

28.However, I do accept that the mode of operation was relatively simple and not sophisticated, and the value of the stolen property was not substantial.  I am prepared to deal with him leniently and adopt the starting point of 30 months without making any upward adjustments for the aforesaid aggravating features.

29.Giving him full credit for his guilty plea, I reduce the sentence to 20 months’ imprisonment.

30.The Defendant has today also paid into court by way of a voluntary compensation in a total sum of $8,540 to the victimised company and Mr. Ip for their respective losses.  Although the said voluntary compensation was made at a late stage, it is still a mitigating factor that should be taken into account and encouraged.  I give him a further discount of 3 months. 

31.I do not find any other matters put forward in mitigation which justify any further reductions.  I therefore sentence him to 17 months’ imprisonment.

32.Compensation Order are also made as follows: -

a. $8,040 to the victimised company; and

b. $500 to Mr. Ip.