HKSAR v. Haider Bilal

DCCC 547/2023

[2023] HKDC 1857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 547 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges of theft and one charge of burglary in this case before me.

2.The Summary of Facts revealed that at the material times, car cameras were installed on each minibus involved in the present case (including what the Prosecution called “Minibus 1 and 2”).  It was part of the duties of Mr Shiu (PW1 - the driver of the victimized company)  to use a tablet computer (the “Tablet”)  to watch the car camera footages and observe the daily operation.  The video footages would also be saved in the Tablet. 

3.On 26 January 2023 at about 3:00 pm, when PW1 checked the video footages of Minibus 1, he discovered that at about 1:55 am on 27 January 2023, the defendant boarded Minibus 1, approached the location where the car camera was installed and touched the said camera.  Shortly after, the video footage turned black. (Charge 1)

4.On 12 March 2023 at about 3:00 pm, when PW1 viewed the video footages of Minibus 2, he found that at about 3:10 am on 13 March 2023, the defendant boarded Minibus 2, walked to the front of the vehicle where the car camera was installed and touched the said camera.  Again, the video footage turned black shortly afterwards. (Charge 2)

5.On 16 March 2023, PW1 could not find the Tablet in the drawer at the place where he stored it.  PW1 then watched the CCTV record and found that the defendant at about 3:17 am on the same day pushed away the CCTV camera.  Nonetheless, the record of another CCTV captured that 7 minutes later, the defendant took the Tablet and left the place.

6.The case was finally reported to the police.

7.On 16 March 2023, DPC15885 (PW2), together with other police officers, noticed the defendant because he resembled the person captured by the CCTV they viewed.  PW2 therefore arrested the defendant for “Theft”.  At about 3:19 pm on the same day, in execution of a search warrant and in the presence of the defendant, PW2 found a black car camera, a black T-shirt, a grey long-sleeve T-shirt, a pair of black trousers, a pair of blue trousers, a pair of black shoes and a pair of grey slippers.  These garments resembled those captured by the above mentioned CCTV video footages.

8.It was also confirmed that the car cameras installed on Minibus 1 and 2 and the Tablet were properties belonging to the victimized company particularized in the charge sheet.  The value of each car camera was HK$350 and that of the Tablet was HK$2,238.

9.Based on the above, the defendant was convicted of the three offences.

10.In mitigation, Mr Allan stressed that the strongest mitigating factor is the guilty plea of the defendant.  It was stated that this shows a strong sign of remorse.  He wanted to restart his life in a constructive manner and hoped very much to have a chance to reboot himself.

11.The defence also submitted a letter and it seems to me that the defendant has strong family support.

12.Mr Allan described the defendant as an opportunist.  But this, as I said in court, does not apply to Charges 2 and 3 when the defendant chose to return and committed those offences.

13.Apart from the background of the defendant, I note that the defendant has an unrelated criminal record.  I therefore do not sentence him on the basis of a repeated offender.

14.I also noted that the total value of the properties involved is not huge and no one was hurt.  This case did not take place in residential area and the actions of the defendant were caught by CCTV which might suggest that the defendant did not have a plan.  He acted alone and no tools had been used.

15.I am prepared to accept that his conducts were not sophisticated, yet, Burglary (Charge 3)  alone is a very serious offence.

16.I agreed that the defendant is relatively young and he appears to be remorseful.

17.There is no tariff on the offence of theft but it is accepted by the defence that the usual starting point of a term of 30 months’ immediate custodial sentence[1] is applicable to Charge 3.

18.Having carefully considered all the mitigations and submissions, I am of the view that an immediate custodial sentence is called for on all the charges.  The commission of the offences in Charges 1 and 2 are much more serious than other forms of theft, such as shoplifting. 

19.Whilst I am prepared to take that the defendant was an opportunist when he committed Charge 1, the defendant must have identified and astutely discerned a loophole in the security measures of the victimised company and have become more confident in carrying out the crimes after his experience in committing Charge 1.  Although Charges 1 and 2 are similar and there is only one victimised company, I do not accept that a wholly concurrent sentence is appropriate. After all, the defendant had committed three offences on three different occasions.

20.I take 1.5-month and 3-month as the respective starting points for Charges 1 and 2 and they are reduced respectively to 1 and 2 months’ imprisonment on the guilty plea.  I also take 30-month as the starting point for Charge 3 and it is reduced to one of 20-month, again, on the guilty plea.

21.Having taken into account the case and submissions as a whole and in particular, the totality principle, I shall order that Charge 1 to be consecutive to the other sentences and 1 month in Charge 2 to be consecutive to the other charges, making it a total of 22 months’ imprisonment (i.e. 1+1+20). 

22.I shall give the defendant a 2-month general discount to be applied to Charge 3 in order to give credit to his mitigations.  In other words, the overall sentence is now 20 months (i.e. 1+1+18).  I see no further reduction that is justified; nor is any other form of sentence being appropriate.

23.The defendant is sentenced to 20 months’ imprisonment accordingly.