HKSAR v. Rezaul Mohammad

DCCC 1134/2022

[2023] HKDC 1409

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1134 OF 2022

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REASONS FOR SENTENCE

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1.Mr Rezaul pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that he, on or about 22 June 2022, in Hong Kong, having entered as a trespasser part of a building known as No 14 Lam Hau Tsuen, Lam Yu Road, Yuen Long, New Territories, stole therein one hexagon key, two pairs of scissors, two spanners, 5 plastic bags, 80 electric wires, one paper tube, two rolls of tapes, one heat shrinkable tubing, 15 plastic tubes, 12 boxes, one wooden strip, two screwdrivers, two hammers, two pairs of pliers and 30 plugs.

Facts admitted by Mr Rezaul

2.A single-storey iron sheet hut in Lam Yu Road, Yuen Long (“the Hut”)  was used by PW1 for storage of goods.

3.The Hut had one main entrance, one side door and one back door, all secured with a padlock.  Next to the Hut was a football pitch (“the Football Pitch”)  surrounded by a 5-meter-tall mesh wire fence built by Lutheran Academy (“the School”).  The School was situated adjacent to the Football Pitch.  There was an alley connecting the Hut, the Football Pitch and Lam Yu Road (“the Alley”).

4.As at about 10 am on 22 June 2022, the mesh wire fence of the Football Pitch was in order.  As at about 12 noon on the same day, the Hut was in order.

5.On 22 June 2022, between about 8:49 and 8:53 pm, Mr Rezaul was seen moving about in the vicinity of the Hut.

6.On 23 June 2022, between about 1:30 and 1:33 am, outside a warehouse in the vicinity, Mr Rezaul was seen again in the vicinity of the Hut.

7.At about 10 am on 23 June 2022, a janitor of the School discovered the mesh wire fence of the Football Pitch was cut open, leaving two 1 m x 2 m holes.  A police report was made.

8.Police came and found that the fences facing the Alley and the Hut were damaged and one iron sheet from the outer wall of the Hut was prized open, leaving a 1 m x 2 m hole.

9.Police found the following items abandoned in the vicinity of the Hut:-

A. In the bush inside the Football Pitch

(a)  One hexagon key (“E1”);

(b)  One pair of scissors (“E2”);

(c)  One spanner (“E3”);

(d)  One pair of scissors (“E4”)

B. In a garbage bin inside the Football Pitch

(e)  One plastic bag (“E5”);

(f)  80 electrical wires (“E6”);

(g)  One plastic bag (“E7”);

(h)  One plastic bag (“E8”);

(i)  One plastic bag (“E9”);

(j)  One paper tube (“E10”);

(k)  One roll of tape (“E11”);

(l)  One roll of tape (“E12”);

(m)  One heat shrinkable tubing (“E13”);

C. Outside the Football Pitch

(n)  10 plastic tubes (“E14”);

(o)  One plastic tube with one box (“E15”);

(p)  Two plastic tubes with 2 boxes (“E16”);

(q)  Two plastic tubes with 2 boxes (“E17”); and

(r)  7 boxes with one wooden strip (“E18”).

10.On 25 June 2022, at about 12:13 am, Mr Rezaul was seen entering a tent located next to a lay-by area (“the Tent”), which was at a 10-min walking distance from the Hut.  Suspecting him to be involved in an earlier burglary, the police intercepted him for enquiry.

11.Upon search of the Tent, the police found:-

(a)  One spanner (“E19”);

(b)  One screwdriver (“E20”);

(c)  One screwdriver (“E21”);

(d)  One hammer (“E22”);

(e)  One hammer (“E23”);

(f)  One pair of pliers (“E24”);

(g)  One pair of pliers (“E25”);

(h)  One plastic bag (“E26”); and

(i)  30 plugs (“E27”).

12.Mr Rezaul repeatedly told the police that he picked up E19-E27 from somewhere.

13.Mr Rezaul was arrested for Burglary.

14.PW1 confirmed that E1-E27 (collectively “the Stolen Property”)  belonged to him and they were found missing from the Hut.

15.The estimated value of the Stolen Property was $2,140.  The cost of repair of the damaged outer wall of the Hut was $1,000.

16.Under caution back at the police station, Mr Rezaul said he had been the sole occupant of the Tent for a month.

17.Mr Rezaul was a Form 8 Recognizance holder at the material time.

18.Mr Rezaul now admits that he entered the Hut as a trespasser and stole therein the Stolen Property.

Criminal record

19.Mr Rezaul has one previous conviction of Theft recorded in May 2022 for which he was sentenced to a term of 4 months’ imprisonment suspended for 3 years.

Antecedents

20.Mr Rezaul is aged 42 (41 at the time of the offence)  with no education, unemployed.  He came from Bangladesh and is a Form 8 Recognizance holder.  He is divorced with a son and a daughter.  He had no fixed place of abode.

Mitigation

21.Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Rezaul.  The following is a summary of the mitigation submissions.

22.The building concerned was a single storey iron sheet hut for the storage of goods.  Nobody lived in the Hut.  The estimated value of the stolen property was $2,140.

23.All the stolen property was recovered by the police.  The damage caused in the burglary included a piece of damaged iron sheet of the store room.  It took $1,000 to repair the damaged iron sheet.

24.Mr Rezaul is 42, a Bangladeshi divorcee.  He arrived in Hong Kong in 2014 and sought non-refoulement claim.  He is a Form 8 Recognizance holder and relies on ISS assistance.  He has no fixed place of abode.

25.Mr Rezaul has a similar criminal record ie theft, which he committed and was sentenced for it shortly before committing this burglary, resulting in a sentence of 4-month imprisonment term suspended for 3 years.

26.The usual starting point of 30 months’ imprisonment for a burglary of non-domestic premises may be adjusted upward or downward according to aggravating or mitigating factors taking into account all relevant circumstances (paras 14-15 of HKSAR v Cheng Wai Kai, CACC 338/2007).

27.In the present case, the aggravating circumstances include:-

(a)  As Mr Rezaul entered the store room at the back, there must be some thinking before the offence, though it might not be as sophisticated as that of a professional;

(b)  The tools used to prise open the iron sheet were unlikely to be heavy equipment; this proposition is supported by the fact that only simple tools were found by the police in the Tent;

(c)  Mr Rezaul has a similar recent criminal record ie Theft; and

(d)  Mr Rezaul is a Form 8 Recognizance holder.

28.Mitigating factors include:-

(a)  The value of the stolen property was not very high;

(b)  The stolen property was recovered; and

(c)  The damage caused to the iron sheet was not very serious.

29.The aggravating and mitigating factors taken together may cancel each other save that his status as a Form 8 Recognizance holder might warrant an enhancement of say 9 months’ imprisonment.  However, the court is urged to add only 3 months to the 30 months’ starting point to reach a final starting point of 33 months (paras 20-22 of HKSAR v Sandagdorj Altankhuyag & Anor, CACC 45/2013).

30.Mr Rezaul pleaded guilty as a result of which his sentence may be reduced to 22 months after the one-third discount.

31.As regards the suspended sentence, the court is urged to activate only 3 months of the suspended sentence and add it to the sentence in the present case.  It is submitted that an overall sentence of 25 months’ imprisonment is likely to reflect the culpability of Mr Rezaul.

Sentence

32.First, I adopt provisionally the usual starting point for burglary of non-domestic premises namely 2½ years’ imprisonment.

33.For his status as a Form 8 Recognizance holder, I shall add 3 months to that starting point.  In choosing that figure, I have had regard to the particular circumstances under which the offence was committed and to the lower degree of impact of that commission on the community at large and on Hong Kong’s reputation for order and security.

34.Mr Rezaul pleaded guilty in good time for which he shall enjoy the customary discount in sentence of one-third.  There are no other mitigating factors of weight to justify a further reduction.

35.There is of course the matter of the suspended sentence.  Mr Rezaul committed the present offence a mere one month after he was sentenced to a suspended term for a similar offence, namely theft.  I see fit to activate to the fullest extent the suspended term of 4 months’ imprisonment.  I do not see the discounted sentence in the present case when coupled with the full activation of the suspended term will constitute an excessive sentence under the principle of totality.

(Mr Rezaul, please stand)

36.The sentence for the present charge is 22 months’ imprisonment.  In addition, I activate the suspended sentence of 4 months in full.  The two sentences are to run consecutively to each other.