HKSAR v. Mahmood Azhar

DCCC 789/2022

[2023] HKDC 1001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 789 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.Flower shop “MIMIMOMO” (the shop)  at the material time situated at Ground Floor, No 98 Nam Cheong Street, Sham Shui Po, Kowloon.  It had a front door facing Nam Cheong Street and a rear door which opened onto a courtyard.  This courtyard could be entered from a rear lane through an iron gate which was fitted with a lock.

3.Around 8 pm 3 June 2022, after locking the shop’s front door and the iron gate leading to the rear lane but leaving the shop’s rear door ajar, the shop-owner left the shop.

4.Around 10 am the following day on 4 June 2022, the shop-owner returned to the shop and found missing from the cashier counter a black notebook computer along with HK$400 cash which was inserted into the computer (the missing items).  The missing items were worth a total of HK$8,400.

5.The shop’s CCTV captured the defendant enter the shop through the rear door and steal the missing items between 00:28 am and 00:37 am on 4 June 2022.  The owner reported the matter to the police.

6.CCTV footage of a nearby shop shows the defendant walk past this shop’s camera carrying a black notebook computer around 00:43 am on 4 June 2022.

7.Around 2:55 pm on 8 June 2022, the defendant was intercepted and arrested by the police in Sham Shui Po.

8.The defendant was a Form 8 holder.

9.None of the missing items were recovered.

Defendant’s Background

10.The defendant is 41 years old.  He was born in Pakistan and was educated up to secondary school level there.  He came to Hong Kong in 2006 and became a Form 8 recognizance holder the following year.

11.During his stay in Hong Kong, he met a woman from mainland China whom he married in 2012.  Prior to his arrest, he was living with his wife and her daughter from her previous marriage.  The defendant has no other family members in Hong Kong.  As both the defendant and his wife were Form 8 holders, they could not work but had to depend on their relatives for their occasional financial contributions which were barely enough for the defendant’s family to make ends meet.

12.He has 12 previous convictions, 4 of which are for the same offence as the one in the present case.

Mitigation

13.Defence counsel Mr Samson Hung urged the court to grant the defendant due credit for his guilty plea and to take into account that: (i)  the offence is not a pre-meditated one.  The defendant was walking along the rear lane behind the shop and found that the wall of the courtyard could be easily climbed over.  He decided to try his luck and climbed over the wall, got inside the courtyard and, finding shop’s rear door ajar, took the opportunity to enter the shop and stole therein; (ii)  he did not use any tools or force to break into the shop, nor did he cause any damage to the shop or the properties inside; and (iii)  the value of the properties stolen was not substantial.

14.Mr Hung also made it clear that the defendant’s commission of the offence had nothing to do with his mental problems.  He was fully aware of what he doing at the material time.

Sentencing considerations

15.The burglary was committed by the defendant without breaking into the shop.  He simply walked into it through a partially opened rear door when the shop was closed for business and took the missing items away.

16.However, the facts show that the shop’s rear door did not open onto an area such as a street or a lane to which the public had access.  It opened onto a courtyard which could be entered from a rear lane through a door fitted with a lock.  And the shop owner had locked this gate before he left.

17.From what defence counsel said about the way in which the defendant bypassed the locked gate to gain entry into the courtyard, I do not agree that this was an opportunistic burglary.

18.It is true that in HKSAR v Sim Ka Wing CACC 450/2000, the Court of Appeal pointed out that the conventional starting point of 2½ years’ imprisonment for burglary of non-domestic premises “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.”  However, the defendant did not simply walk into the shop from the rear lane.  He had to climb over the courtyard’s wall before he could gain access to the shop through its partially-opened rear door.

19.I would adopt the usual starting point of 2½ years’ imprisonment.

20.Commission of this offence by the defendant who is and was at the material time a Form 8 recognizance holder constitutes an aggravating factor for which an enhancement of the starting point should be made.  In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, in discussing the amount of enhancement for this aggravating feature, the Court of Appeal had this to say:-

“…If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of enhancement other than to make the obvious comment that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one…” [1]

21.In considering the extent of enhancement for this aggravating feature, the defendant’s 12 convictions (4 of which are for burglary)  since his arrival in Hong Kong play a relevant part because, compared with a Form 8 holder who is a first offender, such a conviction record underscores the need for deterrence and denunciation[2].

22.I consider an enhancement of 7.5 months to be appropriate for this aggravating feature.  The starting point for the offence is therefore increased to 37.5 months’ imprisonment.  Given all the circumstances, I am satisfied that this enhanced starting point is a just and balanced one.

23.His only effective mitigating factor is his early plea, for which he is entitled to a one-third discount in sentence.  His sentence after this discount is one of 25 months’ imprisonment.