HKSAR v. Mahmood Shahid and Another

DCCC1050/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1050 OF 2011

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Reasons for Sentence

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1.Defendants, you have pleaded guilty to charges of burglary.

2.For the 1st defendant, you have pleaded guilty to Charges 3 and 4, and for the 2nd defendant, Charges 2 and 3.

3.Charge 4 is a charge against you both jointly; Charges 2 and 3 are charges against you solely.

4.I turn first to deal with Charge 2. Charge 2 against the 2nd defendant, you admitted that you burgled a premises between 24 March and 26 March 2011, having entered as a trespasser of a building at Room C, 3rd Floor, No.236, Tung Chau Street, Sham Shui Po, Kowloon, and stole one air-conditioner.

5.The facts of that case are that the owner of the flat had divided the flat into three rooms, namely, Rooms A to C.  He lived in Room A while the remaining two rooms were left vacant.  He had left the premises on 24 March at about 10 am and returned approximately two days later at 6 pm on 26 March.

6.When he returned, he found Room C was prised open and an air-conditioner was missing from Room C.  D2, your palm print was lifted from the barrier of the upper bunk on the bunk bed in Room C.

7.In respect of Charge 3 against the 1st defendant, that burglary offence was committed between 14 May and 15 May 2011, you having entered as a trespasser part of a building known as “Shop 008” on the ground floor of No.142 Un Chau Street, Cheung Sha Wan, Kowloon, and stole one air-conditioner and cash of $50.

8.As to the facts of that charge, the proprietor of the grocery shop had left the shop at about 6.45 pm on 14 May and secured the doors of the shop before she left.

9.She returned at about 4 pm the following day, and when she returned, she found the doors of the shop remained intact.  However, the air-conditioner which was previously installed near the rear door was missing.  The drawer of the cashier desk was prised and cash of HK$50 in coins was missing.

10.She believed that you had gained entry into the shop through the space where the air-conditioner had been installed.

11.The police were called and a fingerprint was lifted from a plastic bag inside the drawer at the cashier desk of the shop, which was found to match your fingerprint (the 1st defendant’s).

12.For the 4th charge, that is against both the defendants, the 1st and 2nd defendants.  For that charge you have admitted that on 18 July 2011 you entered as a trespasser part of a building known as 3rd Floor, No.10, Yiu Tung Street, Shek Kip Mei, Kowloon, and stole three air-conditioners.

13.On that day at around 3.38 pm, the police officer saw you both climbing down from the rooftop of the building located at No.10, Yiu Tung Street.  They saw you enter into an unsecured balcony located at the 3rd floor of the building.  That balcony led to a vacant flat.

14.The police officers then laid ambush outside the main door of the flat.  They observed that the gate of the flat was secured with a metal chain and padlock, and the wooden door was closed.  The officers heard clattering sounds of objects coming from the flat. 

15.Some 20 minutes later, D1 and D2, you both broke the padlock of the gate and transported three broken air-conditioners, a sawing machine and a bag of tools containing a pair of pliers, a hammer and an iron file to the outside of the flat.

16.You were arrested.  Under caution, you both denied the offence.

17.The vacated flat was managed by Richfield Realty Limited on behalf of its client who had acquired the flat, and the air-conditioners belonged to its client.

18.Defendants, your solicitor Mr Krishnan has made very full and thorough mitigation on your behalf.  I have taken into account all that he has had to say.

19.For the 1st defendant, you are of clear record.

20.2nd defendant, you have two previous convictions, one in 2010 of misleading a police officer by giving false information, to which you were sentenced to 4 weeks’ imprisonment, and one in July 2011 of theft, to which you were sentenced to 3 months’ imprisonment, suspended for 24 months.

21.In similarity to you both.  You are both in Hong Kong presently as torture claimants.  You are both from Pakistan, even from the same area called Sialkot in Pakistan, and both were living in Hong Kong under the subsidy of the International Social Services. You also both arrived in Hong Kong illegally.  You are both presently waiting for a ruling upon your torture claimant status.

22.Whilst you are a torture claimant, you both are prohibited to work in Hong Kong and rely solely on approximately $1,000 provision by the International Social Services and, as I have heard from Mr Krishnan, your living is almost close to living destitute.

23.Even though you are provided with food and drink and some funds, you have nowhere to cook the food and, therefore, have to sell the food.  You have no travel allowance to answer your recognisance, which you are required to make every eight weeks, and you generally have to rely on willing friends in Hong Kong or ask for cash for help when you are extremely desperate from your family in Pakistan to survive.

24.Mr Krishnan has stressed upon me that your living in Hong Kong is in a very bad situation, although he accepts that is not an excuse or reason for you to have committed these offences.

25.I turn then to deal with the 1st defendant individually.

26.You are, as I mentioned, of clear record, aged 28, educated to Primary 6 in Pakistan, and speak Punjabi and Urdu.  You are single with no children and, whilst you were in Pakistan, you assisted your brothers operating a grocery store-cum-restaurant and earned a living from that.

27.As a result of incidents in Pakistan, you decided to leave to save your life, went to China and then came to Hong Kong by boat illegally in February 2008.

28.In respect of the 2nd defendant, you have, as I mentioned, two previous convictions.  You are aged 29, educated to secondary level but did not complete secondary school, and speak Punjabi and Urdu.  You are single and also, as a result of incidents in Pakistan, you left Pakistan in 2006 and came to Hong Kong illegally in February or March 2006.  You are still waiting for a decision to be made.

29.In respect of the 3rd charge against the 1st defendant, there is no dispute here that this was a commercial premises. It was a grocery store.

30.In respect of the 2nd charge, they are domestic premises, but Mr Krishnan has advanced in mitigation that these were more or less vacant premises, that the owner of the premises lived in Room A only for a couple of days a week but otherwise lived in China.  The owner had purchased these premises for the purposes of redevelopment and was just waiting for a result from the Urban Renewal Authority.

31.As for Charge 4, this is a domestic premises. 

Mr Krishnan has asked me to look at the photographs, which clearly identify these premises to be derelict. He asks me to accept that these premises are unoccupied and vacant, despite there being evidence of some bowls, refrigerator and other living equipment there.

32.Mr Krishnan has said that you both are not professional burglars.  You had lived in the same area as the burglaries.  You had seen that these buildings were old, unsecured and more or less left vacant and derelict.  Therefore, in view of your very stricken circumstances, your extreme tight financial circumstances, you burgled these premises and stole these air-conditioners which you would sell for scrap for some 20 to 30 dollars.

33.Mr Krishnan has referred me to the air-conditioners in Charge 4 to which you were caught red-handed stealing, to say that they are, in fact, very old and rusted air-conditioners.  In result thereof, he asks me to take a lower starting point than that of the usual 3 years for domestic premises.

34.He accepts that the commercial premises are commercial premises and the usual tariff should apply.

35.Of course, your strongest mitigating factor, defendants, is your plea of guilty and you both know what you did was wrong, but it was a mistake, you say, you made in very desperate circumstances.

36.I accept and give you full credit for your plea of guilty; that is your strongest mitigating factor.

37.As regards Charge 4, you went to these premises fully equipped to burgle.  You went armed with a bag of tools and a sawing machine.

38.The premises, as can be seen from the photographs, from the unsecured balcony side, are what appears to be unoccupied, derelict premises.  The air-conditioner, as can be seen from the photographs, I accept also are old, rusted air-conditioners.

39.The door of the flat was, of course, bolted with a chain and padlocked with a wooden door.  This was broken by you. 

40.Although there are items in the flat such as a refrigerator, bowls and the like, toothpaste, it does not appear to me that this flat was occupied.

41.I will accept Mr Krishnan’s submissions that this was a vacant, unoccupied premises waiting for redevelopment.

42.In respect of Charge 2, the domestic premises with a vacant room, I shall also accept his submissions that the owner himself said that he was waiting for the Urban Renewal Authority URA to resume the premises.

43.In those circumstances, I accept that a lower starting point can be taken instead of the usual 3 years’ starting point for domestic premises.

44.In those circumstances, defendants, I sentence you to the following sentences.

45.For Charge 2, I take a starting point of 2½ years’ imprisonment and give you full credit for your plea of guilty and reduce that term to 20 months’ imprisonment.  That is for the 2nd defendant.

46.On Charge 3, for the 1st defendant, that was a commercial premises and the usual starting point of 2½ years is appropriate, and giving you full credit for your plea of guilty, that term shall be reduced to 20 months’ imprisonment.

47.For Charge 4 for both defendants, I take a lower starting point of 2 years’ imprisonment and give you full credit for your plea of guilty, and reduce that term to one of 16 months’ imprisonment.

48.I must take into account the principle of totality. For each defendant, you have pleaded guilty to two counts of burglary, and in the circumstances, I consider a proper sentence should be that of 22 months’ imprisonment.

49.In those circumstances, I order 2 months of Charge 4 to run consecutive for D1 to Charge 2, for D2 to Charge 3.

50.That makes a total of 22 months’ imprisonment.

51.For D2, there is now a suspended sentence hanging over you, passed upon you on 11 July 2011.  Despite Mr Krishnan’s persuasive submissions for me not to activate this sentence, I see no exceptional grounds for not activating the sentence.

52.The suspended sentence was given after a conviction of theft, an offence of dishonesty.  The sentence passed upon you was about one week prior to the offence to which you committed in Charge 4, so within one week, you committed a very serious similar offence.  There are no grounds for not activating this suspended sentence. 

53.Therefore, that sentence should be activated and you shall serve that 3 months’ sentence consecutive to the present term, making your term totally 25 months’ imprisonment.