HKSAR v. Butt Ummar Aka Butt, Hussain Mohmmed Naeem, Hussan Mohammed Naeem and Naeem Hussain

DCCC 934/2022

[2023] HKDC 1438

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 934 OF 2022

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REASONS FOR SENTENCE

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1.On the defendant’s own plea and admission of the facts, he is convicted of one count of burglary.  The other count faced by him, that of criminal damage, has by consent of the parties and with the court’s leave, been left on the court’s file.

The Facts

2.According to the Summary of Facts admitted by the defendant, the offence took place on a rooftop compartment of Flat C, on the 5^th Floor, Nos 279 and 281 of Reclamation Street, Kowloon.

3.The building is what is locally called a “three-nil” six storey residential building with one staircase, no lift, no main gate nor scaffolding. There are three flats on each floor.  Each rooftop compartment is around 250 square feet. It is divided from the other rooftop compartments by a dwarf wall.

4.At the material time, PW1, Mr Vincent Luk, and PW2, Mr Choi Po Hung were the occupants of Flat C, 5 and the rooftop compartment of the building.  PW2 was the tenant of Flat C and who signed the tenancy agreement.  After renting the unit together with the rooftop compartment, they had put a table, a tent and some plants up in the rooftop compartment. The door to the rooftop was locked with the use of a padlock and at all material times, a portable power bank, valued at HK$598 was hanging inside the tent.

5.At around half past midnight on 10 July 2022, PW2 went up to the roof compartment for checking and found that the power bank inside the tent was missing.  As there was a CCTV camera installed at the rooftop compartment, he and PW1 looked at the footage and found that at around 12:54 pm on 9 July 2022, the defendant had climbed over the dwarf wall from the rooftop compartment of Flat B and gained entry to their roof compartment, meaning that of Flat C.

6.In fact, according to the CCTV footages later examined by the police, the defendant had done this a total of three times.  Apart from doing it at 12:54 pm, as mentioned just now, he also did it at 7:32 pm and again at 8:14 pm the same day.  On each of these occasions, the defendant had spent a short time on the rooftop of Flat C, ranging from 1 to 30 minutes.

7.At about 9:56 am on 13 July 2022, the defendant was intercepted by the police.  Upon a body search, the power bank stolen, among other things, were found inside the defendant’s rucksack.

8.In a video-recorded interview which took place after his arrest, the defendant made certain admissions to the offence which I do not think it is necessary for me to go into here.

The defendant’s background

9.The defendant is a 49-year-old man who was born in Pakistan in 1974.  He came and settled in Hong Kong in 1996 when he was 22 years old.  In 2001, he married a Hong Kong resident.  But the couple was divorced seven to eight years afterwards.  There is no children to the marriage.

10.The defendant has a total of 21 previous convictions.  Six of these were for offences of theft, and he was also convicted of burglary in May 2016 for which he was sentenced to a term of imprisonment for 2½ years.

11.In the written mitigations submitted by his counsel, Mr Richmond, it is said that the defendant after arriving in Hong Kong had been supporting himself by working in a jewellery business on a casual basis.  He had, however, had a rough life after his divorce and has for years resorted to sleeping rough in parks and deserted buildings.

12.About a week prior to the offence, it is said by Mr Richmond that the defendant had moved to sleep at the open staircase landing to the rooftop at No 281 Reclamation Street.

Location of Offence

13.Before I shall deal with the sentence, I think I should say a quick word on two things raised in Mr Richmond’s written submissions, namely:

(1)  The power bank, having been removed from the tent, can it be properly said to have been taken from part of the building? and

(2)  Could the rooftop and the tent be properly regarded as domestic premises?

14.Having given both of these questions some small thoughts, I am satisfied beyond doubt that there is no substance in either of these points.

15.Surely given that the tent was put in the rooftop which must of course by any account be regarded as part of the building where PW1 and 2 were residing, the power bank would have of course been taken from part of the building by the defendant who was admittedly a trespasser at the time.

16.The same applies also to the argument that the rooftop could not be properly regarded as part of a domestic premise.  It is rented by PW2 with the flat for use as his residence.  It was locked at the time. And being part of his own private area, he had put a table, a tent and pots of plants up there.

17.In my view, there is absolutely no reason why the tent or the place where the tent was located should be regarded as anything else but part of the domestic premises which PW1 and 2 had exclusive possession of. In fact, Mr Richmond very fairly accepted that this morning in an exchange between bench and bar.

Sentencing Principles

18.With the above issues out of the way, I shall now deal with the question of sentence.  It has been well accepted for years that for burglary of domestic premises, the starting point is 3 years’ imprisonment

19.However, although I have found as a fact that the rooftop is part of the building and can be properly regarded as a domestic premises in the present case, I accept also that as it is not within the flat, PW1 and 2 are likely to have felt a lesser degree of intrusion.  The degree of alarm and discomfort caused to them is therefore also likely to be a little less than in the case where their flat was burgled.

20.And with that in mind, I shall take what the prosecution may regard as an over-generous view and adopt a lower starting point of 33 months’ imprisonment.

21.The defendant pleaded guilty to the charge at the earliest opportunity. For that he would of course be entitled to the full one-third discount. Apart from that, I cannot see any other ground or factor which would have allowed me to reduce the sentence further.

22.On the aforesaid basis therefore, the defendant is sentenced to 22 months’ imprisonment.