HKSAR v. Kamrul Fariha Tabassum
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DCCC 55/2026 [2026] HKDC 1955 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 55 OF 2026 ------------------------------
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-------------------------------------------------- REASONS FOR SENTENCE -------------------------------------------------- Charges 1.The Defendant pleads guilty to: (1) Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and (2) Theft, contrary to section 9 of the Theft Ordinance, Cap 210. 2.The particulars of the charge of Burglary allege that on 16 July 2025, the Defendant, having entered as a trespasser part of a building known as ‘Anytime Fitness’, 1st and 2nd Floors, Nos 20 - 22 Granville Road, Tsim Sha Tsui, Kowloon, in Hong Kong, stole therein two wallets, one Hong Kong Identity Card, one Home Visit Permit, one Octopus card, one resident card and 5 bank cards. 3.The particulars of the charge of Theft allege that on 19 July 2025, at the restroom of a McDonald’s Restaurant situated at the Basement of No 12 Peking Road, Tsim Sha Tsui, Kowloon, in Hong Kong, the Defendant stole one iPhone, property belonging to Bernardino Esguerra Eldrichley. Summary of Facts The 1st Charge – Burglary 4.At around 1:37 pm on 16 July 2025, Mr Chan entered a fitness centre named ‘Anytime Fitness’ situated on the 1st Floor, Nos 20-22 Granville Road, Tsim Sha Tsui, Kowloon (the Gym). He was a member of the Gym. There Mr Chan placed his sling bag which contained two wallets on a shelf. Inside those two wallets were Mr Chan’s Hong Kong Identity Card, his Home Visit Permit, one Octopus card, one resident card and five bank cards. Mr Chan then started exercising in the Gym. 5.After his workout, Mr Chan returned to the shelf to retrieve his sling bag at around 3:15 pm. Looking inside his bag, he found that his two wallets were missing. Mr Chan immediately notified a staff member of the Gym of his missing wallets. That staff member watched the relevant CCTV footage and found that at around 2:58 pm, the Defendant approached the shelf in question, fetched Mr Chan’s two wallets from his sling bag, placed them inside her own reusable bag and left the Gym. 6.At all material times, the Defendant was not a member of the Gym, thus not authorized to enter the Gym. She gained entry to the Gym at the material time by following a member when the latter entered the Gym. 7.A report was subsequently made to the police. The 2nd Charge – Theft 8.At around 12.25 am on 19 July 2025 ie 3 days after the above Gym stealing incident, Miss Bernardino, a Norwegian tourist in Hong Kong, visited the McDonald’s Restaurant at the Basement of No 12 Peking Road, Tsim Sha Tsui, Kowloon. She went to the restaurant's restroom. After using the toilet, she left her iPhone there. At about 1:10 am, Miss Bernardino returned but found that her iPhone was no longer inside the restroom. She then made a report to police. 9.At about 5:50 am on the same day, police officers saw the Defendant at 12 Peking Road, Tsim Sha Tsui. Since the Defendant’s appearance resembled the description of the wanted suspect of the above Gym burglary incident which happened three days ago, the police intercepted the Defendant for enquiry. Upon a search, Miss Bernardino’s iPhone was found inside the Defendant’s handbag. Cautioned Statements 10.After her arrest, the Defendant was interviewed under caution by police, in which the Defendant made full admissions:
Mitigation 11.The Defendant, aged 29, was born in Bangladesh. In 2013, the Defendant, together with her father, came to Hong Kong lawfully. At about that time, the Defendant’s mother passed away and her father re-married. The Defendant did not remain in Hong Kong but flew back to Bangladesh to continue her studies. She would just stay in Hong Kong during her school holidays. She completed her tertiary education in Bangladesh. 12.About one year after her father re-married, the Defendant married a man in Bangladesh according to Islamic practice. This was a short marriage, without children, which ended up in divorce. 13.The Defendant had lived in a rented flat since 2020. She was living in this flat at the time of her arrest. She had worked as waitress but lost the job because of health problem. Her unemployment and lack of income were the reasons for her commission of these two offences. She had only HK$400 at the time of her arrest. 14.Mr Tracy, acting for the Defendant, suggested that a background report might shed more light on the Defendant’s personal background and circumstances, including her medical condition or possibly mental state during her remand. This would, Mr Tracy submitted, assist the court in reaching a proper sentence. I acceded to that request and adjourned the sentence for the Background Report. 15.The Background Report dated 5 October 2026 indeed does not shed much light on the Defendant. Apart from stating some basic family background of the Defendant, the Probation Officer was of the view that the Defendant was not co-operative nor honest to share her information. The Defendant was found to have given inconsistent information during their interviews. 16.On further request of Mr Tracy, in light of the Defendant’s history of mental illness, the court asked for Psychologist’s and Psychiatric Reports. 17.The Psychologist’s Report of 16 October 2026 states that psychological assessment did not suggest gross psychopathology nor evidence of Kleptomania, a psychological disorder of compulsive stealing. The Defendant displayed an array of life problems which reflected her maladaptive problem-solving and inadequate financial management. She committed the offences in this case out of greed. No psychological intervention is deemed necessary. 18.The Psychiatric Report of 15 October 2026 states that, despite her mental health problem and her admission to the Kwai Chung Hospital in 2024, the Defendant did not have any psychotic symptoms. She has been mentally stable since her remand. The Defendant’s father visited the Defendant regularly but did not notice any abnormal mental state on the part of the Defendant. In-patient psychiatric treatment was not necessary, and out-patient psychiatric follow-up was recommended – for longitudinal monitoring of her condition. 19.On sentencing authorities, Mr Tracy has referred to this court the following appellate decisions:
Analysis Four-Step Sentencing Approach 20.I will adopt the 4-step sentencing approach enunciated very recently by the Court of Appeal in HKSAR v Tung Chi Ho, CACC 258/2024, unreported (Reasons for Judgment in Chinese dated 3 July 2026). Step 1 – The Proper Starting Point The 1st Charge – Burglary 21.Burglary is a serious offence and the Court of Appeal has repeatedly emphasized that, but for the most exceptional circumstances, a community service order would rarely be an appropriate sentence. (see eg HKSAR v Wan Ka Kit [2006] 3 HKLRD 9, para. 31, referring to HKSAR v Po Yan Chuen [2002] 2 HKC 172). 22.As regards burglary of non-domestic premises, absent aggravating factors, the normal starting point for an adult offender is 2.5 years. (see e.g. R v Wong Man [1993] 1 HKC 80；HKSAR v Sim Ka Wing, supra；HKSAR v Cheng Wai Kai (鄭偉佳) CACC 338 & 339/2007，unreported；HKSAR v Siu Pak Kin, CACC 213/2011, unreported; HKSAR v Chan Kong-yiu, supra） Walk-in / Opportunistic Burglary ? 23.In HKSAR v Sim Ka-wing, supra, the Court of Appeal recognized that: “the starting point of 2.5 years for burglary of non-domestic premises could be lowered in the case of opportunistic burglar, akin perhaps to the ‘sneak thief’ who walked into an open office to steal whatever he could find. Likewise, the conventional starting point could be increased in the case of professional criminals who planned their burglaries with meticulous care and steal goods and cash of considerable value.” (page 5 of the unreported judgment) 24.In HKSAR v Cheung To-ming, supra, the burgled premises in question were a wildlife education centre in Mai Po, New Territories. The staff locked the centre up but found the window broken and the main door open when they returned the next morning. Ten empty noodles packets were found on a table. Police subsequently lifted several sets of fingerprints from the premises. The appellant was arrested that same morning, where his fingerprint matched with one of those sets of fingerprints found inside the burgled premises. The appellant admitted that he entered the centre alone noticing that the main door was left open. He stole the contents of two noodles packets, cooked and consumed them before leaving. The Court of Appeal found that there was nothing to contradict the appellant’s assertion ie the appellant was not the one who broke into the premises. In the ‘most unusual circumstances’ of that case, the Court of Appeal treated the appellant as a ‘sneak thief’ who was able to walk into the centre at some stage after other(s) had broken into it. Upon that sentencing basis, the Court of Appeal considered that an 18-month starting point was appropriate. 25.The position of the Defendant is, in my view, entirely different from the appellant in HKSAR v Cheung To-ming, supra. The Defendant was not a member of the Gym. In order to gain entry, she had to ‘pretend’ she was a member, and to achieve that, she must have waited for the right moment somewhere outside the gym, then walked closely to a member and ‘slipped past’ the entrance. There was some degree of planning and premeditation involved in this exercise. 26.Further, taking that trouble to trespass the Gym must be accompanied with non-innocent intention i.e. to steal in this case. That was exactly what the Defendant did in this case, as was clear from the CCTV screenshots:
27.This in my view could hardly be an opportunistic burglary, nor was the Defendant a ‘sneak thief’. 28.In HKSAR v Hui Wing-chiu, CACC 365/2010, unreported, the applicant was convicted after trial of 2 charges of burglary of commercial premises. The applicant trespassed those premises by following staff members into those offices. He successfully stole property from one company but failed in respect of the other when the staff challenged his presence therein. The sentencing judge rejected the defence’s claim that these burglaries were akin to those of a ‘sneak thief’ walking into an office to steal whatever he could find so that a lower starting point would be appropriate. The Court of Appeal endorsed the judge’s approach and agreed that 2.5 years of imprisonment was the correct starting point for each of these two burglaries. 29.Referring to HKSAR v Hui Wing-chiu, supra, the Court of Appeal in HKSAR v Monkhor Gantugs, CACC 178/2016, unreported, distinguished the facts of HKSAR v Cheung To-ming, supra. This is again a case where the applicant waited outside the burgled commercial premises in order to gain entry, and subsequently successfully entered the premises, and stole various items. The Court of Appeal endorsed: (i) the judge’s rejection of the applicant’s submission that these were opportunistic burglaries; and (ii) the judge’s adoption of 2.5 years as the proper starting point for individual offence. (para 7-9) 30.The Court of Appeal further commented the severity of these offences at para. 15 of its judgment: “There must be a significant deterrent component in sentence to discourage people like the applicant from brazenly entering private company premises and preying on members of staff who are going about their business in what they should expect to be the security of their workplace.” (para 15) I take the view the same deterrence should likewise apply to the Defendant who brazenly gained entry to private fitness club to prey on club members who are supposed to feel safe by leaving their belongings therein when doing exercises. 31.In all the circumstances, I consider that the proper starting point for the 1st Charge of Burglary should be 30 months. The 2nd Charge – Theft 32.I agree with Mr Tracy that the facts in support of the 2nd Charge of Theft could be classified as an opportunistic theft. Miss Bernardino left her iPhone after using the toilet at the McDonald’s restaurant. When she returned a short while later, the iPhone was gone. There is no basis from the Summary of Facts to suggest any conclusion other than the Defendant’s coincidental appearance at the same restroom and taking the iPhone as her own dishonestly. 33.The case of HKSAR v Ho Ching, supra, referred to this court by Mr Tracy, is concerned with pickpocketing – the appellant took some police marked money from an undercover officer’s shirt pocket when the latter pretended to be drunk. Saw J held that the proper starting point should be 12 months’ imprisonment. This authority does not lend much assistance to my sentencing consideration in the instant case. 34.Mr Tracy suggests a starting point of 6 months for a simple opportunistic theft. That suggestion corresponds to the normal range of sentences imposed on similar cases of theft by finding. 35.In HKSAR v Yeung Wing-yiu, HCMA 1068/2001, unreported, the appellant picked up a mobile phone at a cooked food stall and kept it for his own use. On appeal, the court held that 6 months of imprisonment was the appropriate starting point. 36.In HKSAR v Mac Quang Bink, HCMA 234/2007, unreported, the victim left her mobile phone in a restaurant and the appellant was subsequently found to be in possession of that mobile phone. The appellant said under caution that he picked up the mobile phone and intended to sell it later. On appeal, the court accepted that it was a case of theft by finding and the proper sentence, after a plea of guilty, was 6 months of imprisonment. 37.In HKSAR v Ahmad Fiaz, HCMA 400/2015, unreported, it was again a case of theft by finding, in which the appellant picked up the victim’s cash (RMB6024, HKD$100), 2 mobile phones and some cards. On appeal, the court endorsed the magistrate’s use of 8-month starting point and the ultimate sentence of 7 months of imprisonment, having deducted one month for the appellant’s clear record. 38.For the 2nd Charge of Theft in the instant case, I take the view that the proper starting point should be 6 months. Step 2 – Notional Sentence after Trial 39.I need to consider if there are aggravating circumstances which warrant an increase of starting point. There is none here. Hence, the notional sentence after trial for the 1st Charge of Burglary should be 30 months of imprisonment; and 6 months of imprisonment for the 2nd Charge of Theft. Step 3 – Mitigating Factors 40.There being no other mitigating factors apart from the Defendant’s timely plea which warrants a one-third discount, the sentence is one of 20 months of imprisonment for the 1st Charge; and 4 months of imprisonment for the 2nd Charge. Step 4 – Totality 41.These two offences are completely distinct, having no connection whatsoever with each other. Subject to the totality principle, the court could order that the whole terms for both charges be run consecutively. Having stood back and looked at the circumstances under which these two offences were committed and the Defendant’s personal background, including her lack of previous convictions, I am of the view that a global term of 22 months of imprisonment would be fair, just and balanced. To achieve that, I order that two months of the sentence for the 2nd Charge of Theft be run consecutively to the sentence of the 1st Charge of Burglary, making a total sentence of 22 months of imprisonment. 42.As regards the out-patient psychiatric follow-up for longitudinal monitoring of the Defendant’s condition, I am sure the staff of the Correctional Services Department will make the necessary arrangement. Sentence 43.The Defendant is sentenced to a total term of 22 month of imprisonment.
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