HKSAR v. Amjed Ali

DCCC 433/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two offences of burglary each contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. You admitted the brief facts and I convicted you.

2.Briefly, what happened is this.  In dealing first of all with charge 1, PW1 owned the premises at the 2nd Floor, No. 30 Wing Kwong Street, Hung Hom, Kowloon.  PW1 did not reside at those premises but used it as storage.  On 29 September 2012 at about 0001 hours, PW1 checked that everything in the premises was then in order and then left the premises.  On 16 October at about 0630 hours, PW1 returned to the premises and found the premises were opened.  PW1 found the premises were ransacked and the following items to a value of approximately $564,209 were stolen.  The goods taken were cash of RMB35,000, HK$13,000, 38 rings, 50 pairs of earrings, 10 bracelets, 52 wrist and foot chains, 54 necklaces, one pearl chain, 50 pendants, 12 jade decorations, 4 watches and 1 set of jewellery.  The case was reported to the police.

3.The police found one soft drinks bottle, which is Exhibit 1, in the premises.  This did not belong to PW1.  Analysis showed that your DNA was on that bottle.  The random match probability is 1 in 50.8 trillion.  PW1 confirmed that she did not know you.  You entered the premises as a trespasser and stole the items in paragraph 2 above.

4.Charge 2:  PW2 inherited the premises at the 7th Floor, No. 25 Fung Yi Street, Kowloon City, from her father.  The premises were vacant and stored items from PW2’s father.  A neighbour was entrusted to look after the premises.  On 3 November 2012 at about 1430 hours, PW3 confirmed that the door of the Premises 2 was locked.  On 5 November 2012 at about 1430 hours, PW3 returned to the premises and found the door was prized open.  The premises had been ransacked.  PW2 was informed and confirmed that six sets of suits valued at about $3,000 were stolen.

5.The case was reported to the police.  The police lifted on fingerprint from the bottom of a plastic tray in the second premises and the fingerprint matched with that of your left middle finger.  PW2 confirmed there was not any visitor to the premises in the past 10 years.  You entered those premises as a trespasser and stole the six sets of suits from those premises.

6.Defendant, you admitted to four convictions on one occasion, two were similar to the present offences, however, sentence was subsequent to the commission of these offences.  In fact, these two offences which we are dealing with today, were committed whilst on bail for those offences.

7.Mr Parry entered mitigation on your behalf.  He told me that you are 28 years of age and of Pakistani origin.  Your parents have returned to Pakistan while your mother is suffering from depression arising from your convictions.  At the time of the commission of the offence, you were suffering from drug problems.  However, a fortunate off spin of your time in custody has meant that you have got rid of your drug dependency.  The offences were committed in an effort to obtain money to buy drugs.

8.Mr Parry accepted that these offences were indeed committed whilst on bail for the offences for which you were sentenced in February.  That sentence was one in total of 30 months and 30 days, giving an earliest date of release as 27 August 2014. 

9.Mr Parry told me that prior to your incarceration you had worked in the construction industry earning approximately $10,000 per month.  It was your intention to resume that work and keep out of trouble. 

10.Mr Parry submitted that the two offences should be treated as burglary of non-domestic premises as both flats were used as storage facilities with no one either living there or intending to live there. In fact, I notice they are simply described as premises within the statement of facts. 

11.Mr Parry went on to address me in the different tariffs which applies, the tariff for non-domestic premises being one of 30 months and for domestic premises 36 months.  He also addressed me on the principle of totality, asking for leniency on your behalf.  He submitted that the good effects of your incarceration would be undermined by an unduly lengthy sentence.  He accepted the reason why these offences were not before the court in February was proper and valid but asked me to take into account the likely disposal had they so been.  He pointed out that there was no accomplice involved in these offences and again asked me for leniency.

12.I have to say that I agree with Mr Parry in regard to the premises themselves, it is clear that these cannot be regarded as domestic premises.  They were both, very clearly from the facts, storage facilities with no one in residence.  It seems that the second premises, no one had been in residence for some 10 years and the first premises, as I have said, is not even described as domestic or flat premises but as an address which is a storage facility. Therefore, I accept the argument and intend to deal with it on that basis.

13.At the time of the commission of these offences, you were a person of clear record.  However, it is an aggravating feature that these offences were committed whilst you were on bail.  There are two other aggravating features in my opinion, the first being that the 1st offence involved a substantial value of goods, being over $560,000, and that there are two separate offences.  Also, for the record, I note that nothing was recovered.  The owners of these premises have lost substantial amounts of goods, especially the owners of the first premises.

14.Having said that, I do accept in these circumstances the principle of totality should apply so as not to impose such a sentence that would crush your resolve, to give a sentence that you can see the end of to encourage your rehabilitation. 

15.The following sentences will be imposed:-

- On the 1st offence, I take a starting point of 30 months’ imprisonment reduced to 20 months. On the 2nd offence, 30 months’ imprisonment reduced to 20 months.

- To apply the principle of totality, these will be served concurrent to each other and also I will make part of that sentence concurrent and part consecutive, 15 months will be consecutive to your existing sentence and 5 months will be concurrent. You will therefore go to prison for an extra period of 15 months.