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DCCC 300/2024
C [2024] HKDC 1836 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 300 OF 2024
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HKSAR
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v
I ZULIFKAR I
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K Before: Deputy District Judge Terence Wai K
Date: 30 October 2024
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Present: Ms Leah Wong, Public Prosecutor, for HKSAR
M Mr Davies Oliver Howell, instructed by Fan Wong & Tso, M
assigned by the Director of Legal Aid, for the defendant
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Offence: [1] Burglary（入屋犯法罪）
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to one count of Burglary,
T contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. T
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Facts
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2. On 16 November 2023, a market assistant at the North Kwai
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Chung Market, No 116 Shek Yam Road, Kwai Chung (the Market)
E discovered that two routers (each valued at HK$1,400) in the meter room E
on the ground floor of the Market were missing.
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G 3. The Market’s CCTV captured the defendant entering the G
Market through a partly open gate around 11:49 pm on 15 November 2023
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after the Market had closed for business. He left the Market around 12:02
I am the following day. I
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4. The defendant was arrested on 18 November 2023 at the
K Market. Under caution, the defendant claimed that he had removed the K
routers because they were emitting noises which disturbed his sleep. The
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router shown by the defendant to the police was later confirmed by a
M representative of the company which had installed the missing routers as M
one of those routers.
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O Defendant’s Background O
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5. The defendant is 45 years old. He was born in Hong Kong
Q and was educated up to Form 3 level. Prior to his arrest, he was a delivery Q
worker earning around $600 a day and was living with his parents and an
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elder brother in a public housing unit in Kwai Chung.
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6. He has 13 previous convictions, none of them were for
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burglary. His most recent relevant convictions are 2 charges of attempted
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theft in 2017, for which he received a concurrent sentence of 4 weeks for
C each charge. C
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Mitigation
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7. Defence counsel Mr Oliver Davies pointed out that the
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starting point for commercial premises burglary is 2 ½ years’
G imprisonment. G
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8. HKSAR v Khan Asif [2010] 1 HKLRD 404 and HKSAR v
I Cheung To-ming [2006] 2 HKLRD 259 were cited for the principle that the I
starting point can be lowered for an opportunistic burglar who is akin to a
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sneak thief who walks into open premises.
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9. Mr Davies also quoted the Court of Appeal in HKSAR v Suen
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Chi Wai [2016] 1 HKC 343, 349 as saying:
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“If it can be shown to the satisfaction of the sentencing judge
N that the intruder was stealing from the common areas only and N
not from inside individual homes, a starting point lower than that
of the customary one may – not must – be justified.” (Original
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emphasis.) The Court went on to say that “[T]he facts of the case
and all its surrounding circumstances will determine whether
P and by how much that starting point should be reduced.” P
Q 10. Mr Davies submitted that while the Court in Suen Chi Wai Q
was dealing with a residential building, the rationale for the deduction in
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sentence was grounded in the observation that confrontation of an intruder
S “in the common areas of any building (residential or commercial) is S
unlikely to cause as much alarm (or potential danger) as confronting one
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in the confines of one’s home.”
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C 11. Two District Court cases 1 were referred to to show that a C
further reduction in sentence has been made for defendants who were
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willing to make compensation.
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12. As mitigating factors, Mr Oliver pointed out that the
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defendant gave a full and frank admission to the police on the spot and
G pleaded guilty at the earliest opportunity, for which he should be given 1/3 G
discount on sentence.
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I 13. The nature of the meter room from which the routers were I
stolen is akin to the common part of a residential building in Suen Chi Wai.
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The room was separated from the business part of the Market, was not
K locked and was not forcibly entered by the defendant. The court is urged K
to consider making a downward adjustment in the starting point for the
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defendant’s stealing from the common area of the Market.
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14. The offence was not pre-meditated. The defendant was
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sleeping in the Market after taking drugs, and his sleep was disturbed by
O the noise emitted from the routers. Acting on impulse, he took away the O
routers without using any tools or causing any damage. There was no
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evidence that he planned to sell the routers for monetary gains.
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15. The defendant is prepared to compensate the victim for their
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loss.
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1
HKSAR v Lau Chun Ho DCCC 1262/2011; HKSAR v Lam Kam On DCCC 1175/2010.
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Sentencing considerations
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16. As counsel correctly pointed out, the starting point for
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burglary of non-domestic premises is usually 2 ½ years’ imprisonment.
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17. Even though the defendant may not have planned in advance
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to commit this offence, I am not satisfied that his conduct was that of an
G “opportunistic burglar, akin to a sneak thief who walks into an open office G
to steal whatever he can find” (see paragraph 9 of the judgment in HKSAR
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v Sim Ka Wing CACC 450/2000.)
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18. According to the defendant’s admission upon his arrest and
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mitigation advanced on his behalf, the defendant went to the meter room
K to take away the routers as the noises emitted by them had disturbed his K
sleep.
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M 19. Although his stealing may not have been premeditated, the M
defendant went purposefully to the meter room looking for the routers, and
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he removed them so that they would no longer disturb his sleep.
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20. He was not making use of the opportunity that the unclosed
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Market entrance and the unlocked meter room door presented to him to go
Q inside to steal whatever he might find there. This was not an opportunistic Q
burglary. The starting point will not be lowered on this account.
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S 21. According to the photos of the scene, the meter room appears S
to be located away from the business section of the Market. It can be
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considered to be situated in the common area of the Market. I am asked to
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consider lowering the starting point on account of the theft having taken
C place in such an area. C
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22. I agree with Mr Davies’s submission that in Suen Chi Wai, the
E Court’s rationale for lowering the starting point was grounded in the E
observation that confrontation of an intruder in the common areas of any
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building is unlikely to cause as much alarm or potential danger as
G confronting one in one’s own home in the case of a residential building or G
one’s own shop or office in the case of a commercial building.
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I 23. In our case, the burglary took place close to midnight, after I
the Market had closed for business. The chances of an intruding burglar
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causing fright or alarm to the users or occupants there would have been
K minimal even if the business section had been the target, let alone the K
common areas. In the circumstances of our case, I see no justification in
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lowering the starting point simply because the theft took place in the
M common area. M
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24. A starting point of 30 months’ imprisonment will be adopted.
O The defendant will get a one-third discount for his guilty plea. The O
sentence after such a discount is 20 months’ imprisonment.
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Q 25. The defendant is willing to pay and the prosecution is Q
prepared to accept HK$1,400 as compensation. I hereby make a
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compensation order under section 73 of the Criminal Procedure Ordinance,
S Cap 221 for the defendant to pay HK$1,400 to ETG Holdings Limited. S
This amount is to be paid out of the defendant’s prisoner’s property.
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26. Whilst not wanting to give the impression that the defendant
C can buy his way out of his trouble with the law, his willingness to C
compensate the victim, which can be considered as an indication of
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remorse, should be encouraged and will be reflected in a further 1 month’s
E reduction in sentence, resulting in a final sentence of 19 months’ E
imprisonment.
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( Terence Wai )
Deputy District Judge
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