HKSAR v ZARSHAD (D2)

DCCC 390/2022

[2023] HKDC 1226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 390 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  There are two defendants (D1 and D2)  in the present case. Before this court is D2. D1 and D2 were jointly charged with one count of attempted burglary, Charge 1. D1 had been convicted and sentenced for Charge 1 by another judge to 22 months’ imprisonment on his plea of guilty to the charge.

2.  D2 failed to appear in the hearing on 15 September 2022.  He was rearrested on 21 November 2022.  For his failure to attend court, he was charged with Charge 2, failing to surrender to custody without reasonable cause.  He now pleads guilty to both charges. 

3.  The facts he admitted can be summarised as follows.  PW1 and PW2 resided at 6^th Floor, No 58 Pan Hoi Street, Quarry Bay.  From their flat, they could access the rooftop of the adjacent buildings at Nos 48-92 Pan Hoi Street via the rooftop of their residential building.  For convenience, I will hereinafter refer to these buildings simply by the street number of Pan Hoi Street. 

4.  These residential buildings had been sold for redevelopment and there were only three families, including the families of PW1 and PW2, living in these buildings. 

5.  At around 4 pm on 24 March 2021, PW1 heard suspicious sounds of metal clanging.  PW1 and PW2 tried to look for origin of the sounds and they went to the rooftop of the building at No 58 (Location A), where they saw two non-ethnic Chinese males, M1 and M2 (ie the first man and the second man). 

6.  M1 was wearing a white jacket.  M2 had a crowbar in his right hand.  When confronted, the duo fled to the adjacent building.  Officers arrived in the vicinity and conducted sweeping.  D2 was intercepted by the police, and subsequently positively identified by PW1 as M1. 

7.  Police officers found during investigation prise marks at the metal gate of a residential unit at 7^th floor of No 50 building (Location B).  And among other things, a crowbar was found at the staircase of the 6^th floor of No 84 building. 

8.  PW3 was the owner of location B which was a residential flat used for storage purposes and no one resided there.  PW3 confirmed that a metal plate which was newly installed on the metal gate at location B had been damaged but the metal door remained intact. 

9.  Upon analysis by government chemist, the blue paint fragments recovered from the metal gate of Location B were found to agree in colour and chemical composition with the blue coating of the crowbar seized by the police. 

10.  D1 and D2 were later charged with Charge 1.  The case was transferred to the District Court on 13 May 2022.  After a few hearings, D2 while on bail was required to attend the District Court on 15 September 2022.  He failed to appear at the said hearing and a warrant of arrest was issued. 

11.  D2 did not surrender himself to custody due to sickness between 15 September and 25 October 2022.  Without reasonable cause, he did not surrender to custody on 26 October 2022.  On 21 November 2022, D2 surrendered himself to the police at North Point Police Station and was then rearrested. 

12.  The defendant, ie D2, admits now in court that he intended to enter location B with intent to steal there and he, without reasonable cause, failed to surrender to custody of the court on 26 October 2022. 

13.  The defendant has five previous convictions, three of them for burglary, the last one being sentenced to 2 years’ imprisonment on 25 September 2020. 

14.  Mr Tse, counsel for the defendant, has filed written submission in mitigation and made further oral submission in court.  He says D2, born in Pakistan, is now aged 42.  He came to Hong Kong legally in 1993.  He is married, with a daughter aged 13, who is now studying in the Philippines.  His wife is a domestic helper in Hong Kong.  She went back to the Philippines in July 2023.  D2 has worked as a casual construction worker in Hong Kong.  I am told that D2’s mother, aged 79 is now seriously ill in Pakistan because of diabetes as well as chronic renal failure. 

15.  In mitigation, Mr Tse says when D2 was arrested on 24 March 2021, he was granted police bail and only charged one year after on 31 March 2022.  He was granted High Court bail on 20 June 2022, but bail was revoked by the District Court on 15 September 2022 as he failed to attend court because of illness.  He surrendered to court with a lawyer on 22 November 2022, but the explanation was not accepted by the court. 

16.  In respect of Charge 1, Mr Tse says on the date of offence, D2 went to meet D1 who asked him to go to the rooftop to assist him and D1 carried the crowbar.  D2 only played a secondary role in the incident.  The idea to burgle was not premeditated on the part of D2. 

17.  Counsel acknowledged that the strongest mitigation is D2’s plea of guilty.  He also emphasises that in the incident, nothing was stolen.  Moreover, D2 has paid the price as he lost all his bail money, ie $15,000 cash and 15,000 cash of surety.  He had learned a good lesson. 

18.  He is now deeply worried about the health condition of his mother at home.  He begs the court to impose a lenient sentence so that he could go back to Pakistan to look after his ill mother.  Copies of a medical certificate and affidavit seemingly prepared in Pakistan have been submitted to court in support of the claimed illness of D2’s mother.

19.  As to the 2^nd charge, Mr Tse urged the court to impose a lenient sentence as his bail money had been forfeited.  D2 is prepared to pay a fine. 

20.  Counsel for the defendant refers me to a few District Court sentencing cases, including the reasons for sentence of D1 for this case, who was sentenced to 22 months’ imprisonment for the joint charge. 

21.  Charge 1 is a serious offence, the usual starting point for a single burglary of domestic premises committed by a first offender of full age, where there are no aggravating or mitigating features is 3 years’ imprisonment.  When the burgled premises is non-domestic, a lower starting point at 2½ years could be taken. 

22.  The first issue is what should be the proper starting point for Charge 1.  I first note that it was an attempted burglary, no substantial damage was caused. 

23.  D1 in this case had been sentenced for the joint charge.  In sentencing D1, the judge accepted the submission of counsel representing D1 that the premises where the two defendants had attempted to burgle was non-domestic as the unit was used for storage and no one was living there.  Moreover, the vast majority of people living in the buildings had moved out. 

24.  Taking into consideration of the fact that the two defendants were acting together with some planning and/or organisation in it and that D1 had three previous convictions for burglary, the judge adopted a starting point of 33 months’ imprisonment, giving one-third discount for his guilty plea. 

25.  In order to be consistent with the judge sentencing D1, I would also treat the flat in question as non-domestic premises, but there was aggravating circumstances in this case.  The two defendants were committing the crime together.  A crowbar was also used in the commission of the offence.  There was an element of premeditation.  Forensic evidence in the case also suggests that the crowbar had been used to prise the metal gate of the premises.  While the idea to commit the crime might have been initiated by D1, as D2 so put forward in mitigation, I do not think that there is a material difference in the roles they played.  These aggravating features could justify an enhancement of sentence for three months. 

26.  As can be seen from the reasons for sentence of D1, D1 had three previous convictions for burglary.  D2 also has three previous convictions for burglary.  Both of them are persistent offenders.  For his repeat offending, the sentence of D2 could be further enhanced for another 3 months in order to deter him from reoffending. 

27.  That said, taking into consideration the totality principle, I am satisfied that an overall 33 months’ imprisonment, as adopted by the judge sentencing D1, is not a manifestly inadequate sentence.  I too would adopt the same as the starting point on Charge 1 for D2 in order to achieve consistency in sentencing offenders with similar background and criminality. 

28.  As regards mitigating factors, while I can understand the anxiety of D2 for his very sick mother, the medical condition of his mother cannot be used as a mitigating factor for a serious offence such as the present one.  The only valid mitigating factor is D2’s plea of guilty.  I should note here that D2 entered his plea of guilty much later than D1.  It was only after repeated adjournments that D2 eventually reached his decision to plead guilty. 

29.  To his credit, however, he indicated his plea of guilty before this case was set down for trial.  In all the circumstances of this case, I am prepared to take a lenient approach to give him the full one-third discount for his guilty plea. 

30.  As to Charge 2, there is no sentencing guideline.  The sentence is often an immediate custodial sentence depending on the seriousness of each individual case. 

31.  For a complete picture, I will give a little more background of this charge.  As can be seen from the court record, D2 failed to attend court for hearing on 15 September 2022.  His solicitors wrote to this court on 26 October explaining that the defendant did not attend the hearing because he was not medically fit.  His solicitor said the defendant would surrender to court and his counsel could attend a hearing on 11 November. 

32.  The court replied on 27 October directing that the defendant must surrender to the police or to the court forthwith.  However, the defendant did not surrender until 21 November 2022 when he surrendered himself to a police station. 

33.  He was brought to court on 22 November.  In that hearing, the defendant was represented by counsel who explained about the defendant’s failure to attend court with medical certificates produced.  The explanation was not accepted by the Chief Judge of District Court who forfeited the bail money of the defendant, ie $15,000 cash as well as another $15,000 of D2’s surety. 

34.  I pause here to note that the medical certificates produced by the defendant recommended sick leave for D2’s complaint of hand pain and sciatica.  The medical certificates covered some periods on and off between 15 September and 25 October 2022.

35.  Accepting that D2 might have reasonable cause for his failing to surrender until 25 October 2022, the prosecution amended Charge 2, quite properly in my view, to allege that D2 failed to surrender on 26 October when the sick leave period expires. 

36.  So it was after nearly four weeks when D2 surrendered himself.  It was also a blatant breach of the court’s direction made on 27 October, ordering D2 to surrender to custody. In all the circumstances, an immediate custodial sentence is in my view the proper sentence. 

37.  On the other hand, I take into consideration the fact that his bail money, as much as $30,000, had been forfeited and after all, he surrendered himself eventually.  I take 3 weeks’ imprisonment as the starting point and reduce it to 2 weeks for his plea of guilty. 

38.  I am afraid that the sentence has to run consecutively to the sentence on Charge 1.  Therefore, the overall sentence would be 22 months and 2 weeks’ imprisonment that the defendant has to go to gaol.