HKSAR v. Md Emran Hossain

DCCC 492/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 492 OF 2014

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Reasons for Sentence

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1.Defendant, you pleaded not guilty to one charge of burglary.  You were convicted of this offence after trial.  I will not repeat the facts or the evidence.  I dealt with them in full in my verdict.

2.To summarise, I was sure you the defendant climbed into PW1’s home, Room 34C on the 2nd floor of the building. No one was home at the time.  I am sure it was you who ransacked his home and stole RMB600.  I am sure you tried to leave Room 34C by the door, only to find it padlocked.  Clearly, in desperation, you tried to break the padlock open with tools.  By doing this you generated much noise and attracted the attention of a neighbour next door and a patrolling police officer in the building.

3.The police officer went to the source of the noise he heard and saw you trying to get out of Room 34C.  When you saw the police officer watching you, you shut the door and went back inside.  What you did next was obviously climb out of Room 34C through the window.  You must have walked along the canopy below the window to Room 38.  I am sure you climbed in through an open window of Room 38 and hid in a room under a pile of blankets or cloth to try and avoid arrest.

4.You were eventually found when the police conducted a more thorough search.  When you were found, you had tools in one hand, and RMB600 in his pocket.  This is the exact amount PW1 reported stolen.

5.There was no admission at any stage from you.  You defended this case by alleging you were plucked off the street by the police, taken up to the material premises, beaten into submission, and framed for the burglary.

6.I rejected these allegations.

7.You, the defendant is 36 years old.  You have been in Hong Kong since 2006, claiming asylum.  You have come from Bangladesh, where you have left a wife and child.  You are not a man of clear record in Hong Kong.  You have two previous convictions, both in 2012.  The first was a theft offence, where the facts are you climbed up a ladder onto a church roof to steal copper wires.  The second conviction was some six months later, where you were charged with going equipped for stealing and sentenced to 8 months’ imprisonment.  Today is your third conviction.

8.There is a normal usual tariff for a burglary of a domestic premises, and that is a 3‑year starting point in the absence of any aggravating or mitigating factors. 

9.I have considered the prosecution’s submission that you, the defendant took tools with you to burgle and that should constitute an aggravating factor.  However, this flat, 34C, is very small, and despite carrying tools, I am sure the defendant would have made sure it was empty before climbing in the open window.  There was no danger of you confronting anyone in the course of your burglary.  So on these facts I do not find there to be any aggravating factors.

10.From what I have heard in mitigation, nor are there any mitigating factors.

11.Defendant, please stand up.  I will, after considering those factors, take a starting point of 3 years’ imprisonment. This is a conviction after trial.  I see no reason for any discount to that starting point.

12.Accordingly, you are sentenced to 3 years’ imprisonment for this burglary.