HKSAR v. Muhammad Akhtar Nawaz

DCCC 1068/2021

[2022] HKDC 1478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1068 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of burglary. The stolen items were: -

(a)  one plastic bags;

(b)  one stick holder with 101 fortune sticks;

(c)  three dictionaries;

(d)  one CD cleaning set.

Summary of Facts

2.On 2 September 2021, at around 2 pm, PW2 saw from the CCTV that the defendant entered the building, took the lift to 10/F and exited from that floor.

3.PW2 immediately informed his neighbour PW1 who was the owners of one of the flats on 11/f including the roof area.  PW1 informed his son (PW3)  to check if anything happened on the roof top, PW3 found nothing suspicious.

4.PW3 went to PW2’s home to monitor the situation from CCTV and saw the defendant entered the lift from the 8/F and exited on 11/F with a white sack bag.

5.PW2 and PW3 went to the rooftop and saw the defendant prized open PW1’s cabinet with an unknown hard object.

6.PW3 took a photo of the defendant with his mobile phone and reported the case to the police.

7.When the police arrived to make enquiry from PW2 and PW3, the defendant came down to the 11/F carrying a rucksack, holding a red plastic bag containing the Chinese fortune sticks and a container in his hand.

8.During a search of the defendant’s rucksack, it was found that it contained a spanner, two pincers and hex keys.

9.Inside the white sack bag, it contained the following items which belonged to PW1:-

(a)  three dictionaries,

(b)  one CD lens cleaner.

10.Signs of ransacking were found on the roof top and two storage cabinets belonging to PW1 were found broken and the following items belonging to PW1 were scattered outside the broken cabinet: -

(a)  a violin case;

(b)  one recycle bag containing 2 spanners;

(c)  three screwdrivers;

(d)  one recycle bag containing 3 polishers.

11.In the record of interview, the defendant said: -

(a)  He did not burgle, but picked up trash for reselling.

(b)  He entered the building with the intend to collect trash for selling.

(c)  He claimed that the items were all scattered on the rooftop. He took a plastic bag and walked down the stairs.

(d)  He refused to say anything when showed the items belonged to PW1.

(e)  He said that the items inside the backpacks belonged to him. Some of them were trashes that he collected elsewhere.

12.The CCTV footage showed the following incidents: -

14:02 to 14:03	The Defendant appeared at the entrance of the building. He fiddled   with the password lock , then pushed through the front gate and entered the building
14:04	The defendant appeared at the lift lobby and soon got into the lift
14:04	The Defendant entered the lift at ground floor and left at the 10/F.
14:21	The Defendant entered the lift at 6/f and left at the 11/f.

Criminal record

13.The defendant has three previous conviction records:-

(a)  Assaulting a police in 2003;

(b)  Possession of dangerous drugs in 2005 and 2006.

Personal background and mitigation

14.The defendant was born in Pakistan; he is now 39 years old.  He came to Hong Kong as a dependent to his father who had passed away.

15.The defendant had consumed some alcohol at the material time.

16.The defence advanced the mitigating on the ground that: -

(a)  That the present case was an opportunistic burglary.

(b)  The rooftop was a common part of the building.

(c)  The items have very little resell value.

17.At one point, the defence advanced his mitigation that the defendant entered into the domestic building as the front entrance was not secured, therefore he could make his way up to the rooftop.  Had the entrance been locked, the defendant would not have attempted to enter.

18.Today, having seen the photos of the condition of the front gate, the defence withdrew this point of mitigation as the front gate was shut at the material time.

Sentence

19.It is well settled that the starting point for a domestic burglary is one of 3 years.

20.However, there are circumstances that the defendant can receive a lesser sentence.  The defence referred to 2 cases for sentencing: -

(a)  HKSAR v Cheung To Ming CACC 406/2005 that when a defendant was regarded as a “sneak thief” who was able to walk into premises at some time after one or more others had broken into it earlier.

(b)  HKSAR v Suen Chi Wai CACC 90/2015 that the stealing from the common areas and not just inside the individual homes, a starting point lower than that of the customary one might – not must – be justified.

21.The gate to the building required password to enter, the photos showed that the Defendant fiddled with the password panel before he was able to enter the building. There is no evidence to show how did the defendant know about the password.

22.PW2 and PW3 found the defendant broke open a locked cabinet belonged to PW1 on the roof top of a domestic building.  It was very different from the case of Cheung To Ming that the place had been broken in before the arrival of the appellant.  The defendant cannot be classified as an opportunistic burglar. 

23.When the cabinet was locked, it meant that it belonged to someone. The defendant was hoping that he could found something valuable for stealing. Those stolen items had resell value in them. Clearly, the case of Cheung To Ming cannot be applied in the present circumstances.

24.In the summary of facts, it said that PW1 had the ownership of the rooftop, having seen the photos of the rooftop this morning, I can see that there is no door to the rooftop, no structure or any unit on the rooftop except the containers.

25.I accept that for an outsider, the rooftop appeared to be the common area of a domestic building, there was no domestic unit with occupants living inside it.

26.In the present circumstances, I consider that the lower starting point of 2½ years is appropriate.  Given 1/3 discount, the sentence comes down to 20 months.

Order

27.The defendant is ordered to serve a sentence of 20 months.