A A
B B
DCCC 900/2022
[2024] HKDC 1380
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 900 OF 2022 E
------------------------------
F F
HKSAR
G G
v
H
ATEEQ UR REHMAN (2nd defendant) H
------------------------------
I I
J Before: HH Judge Kathie Cheung J
Date: 21 August 2024
K K
Present: Mr. Santo YIU, Public Prosecutor, for HKSAR
L Mr. Jeevan HINGORANI, instructed by Messrs. Littlewoods L
assigned by the Director of Legal Aid, for the second
M M
defendant
N Offences: [1] Burglary (入屋犯法罪) N
[2] Failing to surrender to custody without reasonable cause
O O
(無合理因由而沒有按照法庭的指定歸押)
P P
Q Q
---------------------------------------
R R
REASONS FOR SENTENCE
S
--------------------------------------- S
T T
U U
V V
A A
B B
1. The second defendant of this case pleaded guilty to 1 count of
C burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap C
210 (the first charge) and 1 count of failing to surrender to custody without
D D
reasonable cause, contrary to section 9L(1) and (3) of the Criminal
E Procedure Ordinance, Cap. 221 (the second charge). E
F F
Facts
G G
2. On 15 February 2022 at around 5:30 p.m., the foreman in
H H
charge of the demolition project at Ground Floor, No. 95 Oak Street, Tai
I Kok Tsui, Kowloon (“the Location”), checked and confirmed that I
entrances were secured with metal chains and padlocks before leaving.
J J
K 3. On 16 February 2022 at around 1:00 a.m., police officers K
conducted an anti-burglary operation in the vicinity of the Location. At
L L
around 3:33 a.m. on the same day, PC17857 saw Mohammad Shahzad
M (“Mohammad”) and an unknown person entered a rear lane furtively at the M
Location. Two minutes later, the second defendant joined them.
N N
O 4. The three of them then walked up the rear staircase of the O
building at Nos. 89 - 91 Oak Street. They soon left the staircase together
P P
and walked towards Nos. 93 - 95 Oak Street and entered the building
Q thereat. Q
R R
5. At 3:57 a.m., they left Nos. 93 - 95 Oak Street and returned to
S the rear lane at the building at Nos. 89 - 91 Oak Street. The second S
T T
U U
2
V V
A A
B B
defendant separated from Mohammad and the unknown person. Shortly
C afterwards, the second defendant joined them again outside No. 55 Anchor C
Street, during which the unknown person placed a nylon bag on a trolley
D D
and Mohammad put a red recycling bag on the nylon bag and tied the bags
E together and left. E
F F
6. At 3:59 a.m., police officers intercepted Mohammad and the
G second defendant. They put up a struggle but were subdued by the police G
officers. Upon search, it was found that the nylon bag contained 19 pieces
H H
of copper pipes (worth HK$5,000) and an orange plier was found on the
I trolley. I
J J
7. It was subsequently confirmed that the 19 pieces of copper
K pipes belonged to the Location. K
L L
8. CCTV camera installed in an adjacent building captured the
M second defendant went up the staircase at Nos. 89 - 91 Oak Street and later M
took a long copper pipe thereat. Mohammad also walked up the staircase
N N
while the second defendant carried some pipes away.
O O
9. In a subsequent cautioned video-recorded interview, the
P P
second defendant claimed that he was on his way to a subway as he was
Q homeless, he asked Mohammad for cigarette and had no knowledge about Q
the nylon bag or plier.
R R
S S
T T
U U
3
V V
A A
B B
10. The second defendant was subsequently prosecuted with the
C first charge in this case. At the hearing on 4 July 2023 at the District Court, C
the case was adjourned to 29 November 2023 at 10:00 a.m.
D D
E 11. On 29 November 2023, the second defendant did not attend E
the hearing. A warrant of arrest was issued against the second defendant.
F F
G 12. On 15 December 2023 at around 8:30 p.m., the second G
defendant was intercepted by a police officer for stop and search at Mong
H H
Kok. His wanted status was revealed and he was re-arrested.
I I
13. Under caution, the second defendant claimed that he overslept
J J
in the morning on 29 November 2023 and he arrived at the District Court
K at around 1:45 p.m. on the same day. While waiting outside the courtroom, K
he received a call from his mother at 2:30 p.m. saying that his younger
L L
brother needed blood transfusion. He thus left for United Christian
M Hospital to see how he could be of assistance. M
N N
Mitigation
O O
14. The second defendant is aged 37 and was born in Hong Kong.
P P
His father has a brain tumor and is unable to work while his brother is
Q suffering from leukaemia. He has a girlfriend with whom he has one Q
daughter aged 1 year and 11 months and one stepdaughter aged 5. At the
R R
time of the first offence, the second defendant, his girlfriend and two
S daughters were homeless and lived in a subway close to the location of the S
T T
U U
4
V V
A A
B B
first offence. His girlfriend and two daughters are now living with his
C mother-in-law. C
D D
15. Prior to Covid, the second defendant worked as a full-time
E decoration worker earning about HK$26,000 per month. Since Covid, the E
second defendant had been unemployed for about 3 years prior to the first
F F
offence.
G G
16. The second defendant has 4 conviction records, one of which
H H
is robbery.
I I
17. The defence referred to several authorities and submitted that
J J
at the time of the first offence, the second defendant was homeless living
K under an underpass in close proximity to the Location. It was submitted K
that this might be considered as an opportunistic burglary and a lower
L L
starting point could be adopted1. Further, it was submitted that the second
M defendant’s financial situation at that time might have a causative M
contribution towards his criminality and may in some way serve in
N N
mitigation2.
O O
18. For the second charge, it was submitted that the second
P P
defendant surrendered himself at Mong Kok Police Station the following
Q day but as a warrant had yet to be issued, he was not re-arrested until 15 Q
December 2023. This Court was urged to consider the second defendant’s
R R
S S
1
HKSAR v Sohail Muhammad, DCCC 206/2022 & HKSAR v Sim Ka Wing, CACC 450/2000
2
Berkland v R [2022] 1 NZLR 509
T T
U U
5
V V
A A
B B
concern over his brother’s condition, that he tried to surrender himself on
C the next day and his bail money was forfeited and adopt a more lenient C
3
approach in sentencing of the second charge .
D D
E Sentence E
F F
19. For the first charge, it is well settled that the starting point for
G burglary of non-domestic premises without any aggravating feature is 30 G
months’ imprisonment.
H H
I 20. In the present case, the entrances of the Location were secured I
with metal chains and padlocks. It was not an open office as stated in
J J
HKSAR v Sim Ka Wing, CACC 450/2000. I do not consider it was an
K opportunistic burglary even if the second defendant resided nearby. K
Given the offence was committed by 3 persons including the second
L L
defendant, this is an aggravating feature and the 30 months’ starting point
M is enhanced by 3 months for this aggravating feature. Although the second M
defendant has 1 previous conviction record for robbery, that record was in
N N
2011 and I will not regard this as an aggravating feature.
O O
21. In HKSAR v Lam Chi Kwan, CACC 1105/2018, the Court of
P P
Appeal repeated that “As a mater of law the judge was entitled to, and
Q normally should, reduce the discount to be awarded for a plea of guilty Q
when the plea is delayed because the defendant has absconded. It is settled
R R
S S
3
HKSAR v Leung Yau-wing, DCCC 486/2013
T T
U U
6
V V
A A
B B
law that the reduced discount should be between 20%-25% 4 .” In the
C present case, the second defendant did go to the District Court after he C
overslept. He only left due to his concern for his brother’s medical
D D
condition. The second defendant then went to Mong Kok police station on
E 30 November 2023 but was not re-arrested for the present case. The period E
of absconding is about 2 weeks. In the circumstances, I am prepared to
F F
give him the usual 1/3 discount for his plea despite he had absconded for 2
G weeks. G
H H
22. Given the second defendant’s plea, the sentence for the first
I charge is reduced to 22 months’ imprisonment. While I note the second I
defendant’s family circumstances, this is not a mitigating factor. Apart
J J
from his guilty plea, there is no other mitigating factor in this case
K justifying a further reduction in sentence. The sentence for the first charge K
is 22 months’ imprisonment.
L L
M 23. For the second charge, the prosecution confirmed the second M
defendant went to Mong Kok police station on 30 November 2023 and he
N N
was arrested for non-payment of fine on that occasion. I accept the second
O defendant could not be re-arrested for the present case if the warrant of O
arrest had not been issued at that time. His period of absconding is 2 weeks.
P P
Having consider all circumstances, I consider the appropriate starting point
Q to be 1.5 months. The sentence is reduced to 1 month given the second Q
defendant’s plea.
R R
S S
4
Paragraph 24 of the judgment
T T
U U
7
V V
A A
B B
24. Having taken into consideration the totality principle and the
C fact that the two offences did not arise from the same incident, I consider C
the sentence for the second charge should run consecutively to the sentence
D D
for the first charge. Therefore, the total sentence of the two charges is 23
E months’ imprisonment. E
F F
G G
H H
I I
J J
K K
L L
M M
N N
( Kathie Cheung )
O O
District Judge
P P
Q Q
R R
S S
T T
U U
8
V V
A A
B B
DCCC 900/2022
[2024] HKDC 1380
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 900 OF 2022 E
------------------------------
F F
HKSAR
G G
v
H
ATEEQ UR REHMAN (2nd defendant) H
------------------------------
I I
J Before: HH Judge Kathie Cheung J
Date: 21 August 2024
K K
Present: Mr. Santo YIU, Public Prosecutor, for HKSAR
L Mr. Jeevan HINGORANI, instructed by Messrs. Littlewoods L
assigned by the Director of Legal Aid, for the second
M M
defendant
N Offences: [1] Burglary (入屋犯法罪) N
[2] Failing to surrender to custody without reasonable cause
O O
(無合理因由而沒有按照法庭的指定歸押)
P P
Q Q
---------------------------------------
R R
REASONS FOR SENTENCE
S
--------------------------------------- S
T T
U U
V V
A A
B B
1. The second defendant of this case pleaded guilty to 1 count of
C burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap C
210 (the first charge) and 1 count of failing to surrender to custody without
D D
reasonable cause, contrary to section 9L(1) and (3) of the Criminal
E Procedure Ordinance, Cap. 221 (the second charge). E
F F
Facts
G G
2. On 15 February 2022 at around 5:30 p.m., the foreman in
H H
charge of the demolition project at Ground Floor, No. 95 Oak Street, Tai
I Kok Tsui, Kowloon (“the Location”), checked and confirmed that I
entrances were secured with metal chains and padlocks before leaving.
J J
K 3. On 16 February 2022 at around 1:00 a.m., police officers K
conducted an anti-burglary operation in the vicinity of the Location. At
L L
around 3:33 a.m. on the same day, PC17857 saw Mohammad Shahzad
M (“Mohammad”) and an unknown person entered a rear lane furtively at the M
Location. Two minutes later, the second defendant joined them.
N N
O 4. The three of them then walked up the rear staircase of the O
building at Nos. 89 - 91 Oak Street. They soon left the staircase together
P P
and walked towards Nos. 93 - 95 Oak Street and entered the building
Q thereat. Q
R R
5. At 3:57 a.m., they left Nos. 93 - 95 Oak Street and returned to
S the rear lane at the building at Nos. 89 - 91 Oak Street. The second S
T T
U U
2
V V
A A
B B
defendant separated from Mohammad and the unknown person. Shortly
C afterwards, the second defendant joined them again outside No. 55 Anchor C
Street, during which the unknown person placed a nylon bag on a trolley
D D
and Mohammad put a red recycling bag on the nylon bag and tied the bags
E together and left. E
F F
6. At 3:59 a.m., police officers intercepted Mohammad and the
G second defendant. They put up a struggle but were subdued by the police G
officers. Upon search, it was found that the nylon bag contained 19 pieces
H H
of copper pipes (worth HK$5,000) and an orange plier was found on the
I trolley. I
J J
7. It was subsequently confirmed that the 19 pieces of copper
K pipes belonged to the Location. K
L L
8. CCTV camera installed in an adjacent building captured the
M second defendant went up the staircase at Nos. 89 - 91 Oak Street and later M
took a long copper pipe thereat. Mohammad also walked up the staircase
N N
while the second defendant carried some pipes away.
O O
9. In a subsequent cautioned video-recorded interview, the
P P
second defendant claimed that he was on his way to a subway as he was
Q homeless, he asked Mohammad for cigarette and had no knowledge about Q
the nylon bag or plier.
R R
S S
T T
U U
3
V V
A A
B B
10. The second defendant was subsequently prosecuted with the
C first charge in this case. At the hearing on 4 July 2023 at the District Court, C
the case was adjourned to 29 November 2023 at 10:00 a.m.
D D
E 11. On 29 November 2023, the second defendant did not attend E
the hearing. A warrant of arrest was issued against the second defendant.
F F
G 12. On 15 December 2023 at around 8:30 p.m., the second G
defendant was intercepted by a police officer for stop and search at Mong
H H
Kok. His wanted status was revealed and he was re-arrested.
I I
13. Under caution, the second defendant claimed that he overslept
J J
in the morning on 29 November 2023 and he arrived at the District Court
K at around 1:45 p.m. on the same day. While waiting outside the courtroom, K
he received a call from his mother at 2:30 p.m. saying that his younger
L L
brother needed blood transfusion. He thus left for United Christian
M Hospital to see how he could be of assistance. M
N N
Mitigation
O O
14. The second defendant is aged 37 and was born in Hong Kong.
P P
His father has a brain tumor and is unable to work while his brother is
Q suffering from leukaemia. He has a girlfriend with whom he has one Q
daughter aged 1 year and 11 months and one stepdaughter aged 5. At the
R R
time of the first offence, the second defendant, his girlfriend and two
S daughters were homeless and lived in a subway close to the location of the S
T T
U U
4
V V
A A
B B
first offence. His girlfriend and two daughters are now living with his
C mother-in-law. C
D D
15. Prior to Covid, the second defendant worked as a full-time
E decoration worker earning about HK$26,000 per month. Since Covid, the E
second defendant had been unemployed for about 3 years prior to the first
F F
offence.
G G
16. The second defendant has 4 conviction records, one of which
H H
is robbery.
I I
17. The defence referred to several authorities and submitted that
J J
at the time of the first offence, the second defendant was homeless living
K under an underpass in close proximity to the Location. It was submitted K
that this might be considered as an opportunistic burglary and a lower
L L
starting point could be adopted1. Further, it was submitted that the second
M defendant’s financial situation at that time might have a causative M
contribution towards his criminality and may in some way serve in
N N
mitigation2.
O O
18. For the second charge, it was submitted that the second
P P
defendant surrendered himself at Mong Kok Police Station the following
Q day but as a warrant had yet to be issued, he was not re-arrested until 15 Q
December 2023. This Court was urged to consider the second defendant’s
R R
S S
1
HKSAR v Sohail Muhammad, DCCC 206/2022 & HKSAR v Sim Ka Wing, CACC 450/2000
2
Berkland v R [2022] 1 NZLR 509
T T
U U
5
V V
A A
B B
concern over his brother’s condition, that he tried to surrender himself on
C the next day and his bail money was forfeited and adopt a more lenient C
3
approach in sentencing of the second charge .
D D
E Sentence E
F F
19. For the first charge, it is well settled that the starting point for
G burglary of non-domestic premises without any aggravating feature is 30 G
months’ imprisonment.
H H
I 20. In the present case, the entrances of the Location were secured I
with metal chains and padlocks. It was not an open office as stated in
J J
HKSAR v Sim Ka Wing, CACC 450/2000. I do not consider it was an
K opportunistic burglary even if the second defendant resided nearby. K
Given the offence was committed by 3 persons including the second
L L
defendant, this is an aggravating feature and the 30 months’ starting point
M is enhanced by 3 months for this aggravating feature. Although the second M
defendant has 1 previous conviction record for robbery, that record was in
N N
2011 and I will not regard this as an aggravating feature.
O O
21. In HKSAR v Lam Chi Kwan, CACC 1105/2018, the Court of
P P
Appeal repeated that “As a mater of law the judge was entitled to, and
Q normally should, reduce the discount to be awarded for a plea of guilty Q
when the plea is delayed because the defendant has absconded. It is settled
R R
S S
3
HKSAR v Leung Yau-wing, DCCC 486/2013
T T
U U
6
V V
A A
B B
law that the reduced discount should be between 20%-25% 4 .” In the
C present case, the second defendant did go to the District Court after he C
overslept. He only left due to his concern for his brother’s medical
D D
condition. The second defendant then went to Mong Kok police station on
E 30 November 2023 but was not re-arrested for the present case. The period E
of absconding is about 2 weeks. In the circumstances, I am prepared to
F F
give him the usual 1/3 discount for his plea despite he had absconded for 2
G weeks. G
H H
22. Given the second defendant’s plea, the sentence for the first
I charge is reduced to 22 months’ imprisonment. While I note the second I
defendant’s family circumstances, this is not a mitigating factor. Apart
J J
from his guilty plea, there is no other mitigating factor in this case
K justifying a further reduction in sentence. The sentence for the first charge K
is 22 months’ imprisonment.
L L
M 23. For the second charge, the prosecution confirmed the second M
defendant went to Mong Kok police station on 30 November 2023 and he
N N
was arrested for non-payment of fine on that occasion. I accept the second
O defendant could not be re-arrested for the present case if the warrant of O
arrest had not been issued at that time. His period of absconding is 2 weeks.
P P
Having consider all circumstances, I consider the appropriate starting point
Q to be 1.5 months. The sentence is reduced to 1 month given the second Q
defendant’s plea.
R R
S S
4
Paragraph 24 of the judgment
T T
U U
7
V V
A A
B B
24. Having taken into consideration the totality principle and the
C fact that the two offences did not arise from the same incident, I consider C
the sentence for the second charge should run consecutively to the sentence
D D
for the first charge. Therefore, the total sentence of the two charges is 23
E months’ imprisonment. E
F F
G G
H H
I I
J J
K K
L L
M M
N N
( Kathie Cheung )
O O
District Judge
P P
Q Q
R R
S S
T T
U U
8
V V