區域法院（刑事）Deputy District Judge Bina Chainrai11/10/2016
DCCC458/2016
A A
B DCCC 458/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 458 OF 2016
E E
F F
G G
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H HKSAR H
v
I I
BUTT Ummar
J ----------------- J
K K
L Before : Deputy District Judge Bina Chainrai in Court L
Date of Verdict : 11th October, 2016 at 5:33 p.m.
M M
Present : Mr. Edward Laskey, Counsel on Fiat, for HKSAR/DPP
N Mr. Ian Polson instructed by Messrs. Massie & Clement N
(D.L.A.) for the Defendant
O O
Offences : [1] Burglary
P [2] Resisting police officers P
[3] Possession of a dangerous drug
Q Q
R R
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S
REASONS FOR SENTENCE S
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T T
U CRT20/11.10.2016/ DCCC 458/2016/Sentence U
V V
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A A
B B
1. The Defendant stands convicted after trial of Count 1 of
C burglary, contrary to section 11(1) (b) of the Theft Ordinance, Cap. 210, C
count 2 of resisting police officers in the execution of their duties, contrary
D D
to Section 63 of the Police Force Ordinance, Cap 232, and count 3 of
E possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the E
Dangerous Drugs Ordinance, Cap. 134.
F F
G G
2. Full particulars of the offences are set out in my verdict
H H
delivered today. The burgled premises are residential premises at Room B2,
I
2nd floor, No. 9 Wing Lung Street, Cheung Sha Wan in Kowloon. The I
premises known as Room B2 was a sub-divided ‘flat’ in Flat B. PW3 was
J J
the tenant of the premises, and had secured it before he left the premises on
K the morning of 31 March, 2016. K
L L
3. He returned to the premises after getting a message from the
M M
police and found the padlock with which he had secured the door of Room
N N
B2 as well as the door itself had been prized open and the premises
O
appeared to have been ransacked – he had left it in a tidy condition that O
morning but when he returned he found things had been moved around and
P P
the bed clothing on the bed in disarray. However nothing was missing
Q from his room. Q
R R
4. PWs 1 and 2, police officers in plain clothes and on foot patrol
S S
in the building came upon the Defendant inside Room B2 – he was seen by
T PW1 squatting near the bed in Room B2 and ransacking the bed. When he T
U
asked what he was doing, the Defendant stood and rushed from the room, U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-3-
A A
B B
pushing aside PWs 1 and 2 who were standing at the doorway of Room B2.
C The police officers chased after the Defendant and were able to subdue him C
st nd
after a brief struggle at the landing between the 1 and 2 floors of the
D D
building. When PW1 searched the Defendant there, he found Exhibit P2, a
E silver coloured crowbar, tucked at the back of the Defendant’s jeans, under E
the black upper garment that the Defendant was wearing. The Defendant
F F
was arrested for the offences of burglary and assaulting police officers at
G the scene. He was brought back to the Cheung Sha Wan Police Station G
where a thorough search was conducted on the Defendant, and the
H H
dangerous drugs the subject matter of Count 3 was found in a pocket of the
I Defendant’s jeans. I
J J
K Previous Convictions K
L L
5. The Defendant has 21 previous convictions in 15 court
M M
appearances. His criminal record dates back to 1997. Although he has no
N N
previous convictions similar to burglary, he does have dishonesty related
O
offences. He also has previous drugs related offences as well as a previous O
offence of assaulting a police officer.
P P
Q Q
Mitigation
R R
S S
6. Mr. Polson indicated that he was on bail in respect of the last
T conviction on his criminal record when the present offences were T
committed. That must be viewed as an aggravating feature. The Defendant
U U
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V V
-4-
A A
B B
is a divorced man and had been in Hong Kong since 1996. He worked as a
C transport worker. C
D D
7. In passing sentence I have carefully considered everything
E E
said on the Defendant’s behalf by M. Polson.
F F
G G
8. The correct starting point for a single burglary of residential
H premises committed by a first offender of full age where there are no H
aggravating or mitigating features is 3 years imprisonment.
I I
J J
9. We had heard evidence that the whole building was awaiting
K K
re-development although it was occupied. Lower starting points have been
L taken where the premises are not occupied. In HKSAR v Chau Man Ying, L
CACC 439/2011, the appellant was sentenced to 2 years after trial for
M M
burglary of a flat in a vacant residential building awaiting redevelopment.
N N
O O
10. Considering the burglary was opportunistic; the premises
P were almost derelict and the value of the property stolen was very low the P
Court of Appeal substituted a sentence which enabled the appellant’s
Q Q
immediate release. The appellant had been in custody almost 12 months.
R R
S S
11. I do not find that the burglary herein was opportunistic.. The
T flat was secured and needed to be broken into to gain entry. The Defendant T
U U
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-5-
A A
B B
was carrying tools with him at the time of the burglary, namely the
C crowbar, Exhibit P2. C
D D
12. In HKSAR v Lee Chiu Yui, CACC 24/2014, the Court of
E E
Appeal held where the burglar had with him an array of housebreaking
F F
tools when burgling a temporary office which was cleared out with all
G
properties removed and was ready to be demolished the appropriate G
sentence after trial was 2 years imprisonment.
H H
I I
13. I accept that on this occasion nothing had been stolen - that is
J because the police officers came upon the Defendant when he was J
ransacking the room. I accept that even if property had been stolen, it is
K K
unlikely that it would have been of high value.
L L
M M
14. In the present case, I find that there was no aggravating
N features in the commission of the burglary offence in that nothing had been N
stolen, the Defendant committed the offence alone, the offence was
O O
committed at a time when the occupant had left the premises and the
P possibility of confrontation was low, and the damage caused to the door P
was not substantial.
Q Q
R R
15. I am therefore satisfied the appropriate starting point is 2 1/2
S S
years imprisonment for Count 1.
T T
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CRT20/11.10.2016/ DCCC 458/2016/Sentence
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A A
B B
16. A person convicted of an offence contrary to Section 63 of the
C Police Force Ordinance, Cap 232 is liable upon summary conviction to C
imprisonment for 6 months and a fine of $5,000.
D D
E E
17. Having considered the circumstances of the offence here, and
F F
the circumstances of the Defendant, I am satisfied that the appropriate
G
starting point is 1 month’s imprisonment. G
H H
18. The dangerous drugs in Count 3 is one plastic packet
I I
containing 0.12 grammes of a crystalline solid containing
J methamphetamine hydrochloride. Section 8(2) of the Dangerous Drugs J
Ordinanance, Cap. 134, provides that on conviction upon indictment a
K K
person is liable to a fine of $1,000,000 and, subject to section 54A, to
L imprisonment for 7 years. Section 54A requires the Court to consider a L
Drug Addiction Treatment Centre Report unless in the same proceedings
M M
the person is sentenced to imprisonment of more than 9 months.
N N
O O
19. As the sentence in respect of Count 1 would exceed 9 months’
P imprisonment, it is not necessary to call for a Drug Addiction Treatment P
Centre Report.
Q Q
R R
20. Having considered the circumstances of the offence in respect
S S
of Count 3, as well as the circumstances of the Defendant, I am satisfied
T that the appropriate starting point is 6 months’ imprisonment. T
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A A
B B
21. These are separate and distinct offences warranting
C consecutive sentences but I do bear in mind the totality principle of C
sentence. I shall order that the sentences in respect of Counts 1 and 2 be
D D
served concurrently, and that for Count 3 be served consecutively to the
E sentence for Counts 1 and 2. That is a total of 3 years’ imprisonment. E
F F
G
22. The Defendant has been convicted after trial. He has shown G
no remorse. I can see no features to warrant any further discount in
H H
sentence. He is sentenced to a total of 3 years’ imprisonment.
I I
J J
K Bina Chainrai K
L Deputy District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
A A
B DCCC 458/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 458 OF 2016
E E
F F
G G
-----------------
H HKSAR H
v
I I
BUTT Ummar
J ----------------- J
K K
L Before : Deputy District Judge Bina Chainrai in Court L
Date of Verdict : 11th October, 2016 at 5:33 p.m.
M M
Present : Mr. Edward Laskey, Counsel on Fiat, for HKSAR/DPP
N Mr. Ian Polson instructed by Messrs. Massie & Clement N
(D.L.A.) for the Defendant
O O
Offences : [1] Burglary
P [2] Resisting police officers P
[3] Possession of a dangerous drug
Q Q
R R
-------------------------------------------
S
REASONS FOR SENTENCE S
-------------------------------------------
T T
U CRT20/11.10.2016/ DCCC 458/2016/Sentence U
V V
-2-
A A
B B
1. The Defendant stands convicted after trial of Count 1 of
C burglary, contrary to section 11(1) (b) of the Theft Ordinance, Cap. 210, C
count 2 of resisting police officers in the execution of their duties, contrary
D D
to Section 63 of the Police Force Ordinance, Cap 232, and count 3 of
E possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the E
Dangerous Drugs Ordinance, Cap. 134.
F F
G G
2. Full particulars of the offences are set out in my verdict
H H
delivered today. The burgled premises are residential premises at Room B2,
I
2nd floor, No. 9 Wing Lung Street, Cheung Sha Wan in Kowloon. The I
premises known as Room B2 was a sub-divided ‘flat’ in Flat B. PW3 was
J J
the tenant of the premises, and had secured it before he left the premises on
K the morning of 31 March, 2016. K
L L
3. He returned to the premises after getting a message from the
M M
police and found the padlock with which he had secured the door of Room
N N
B2 as well as the door itself had been prized open and the premises
O
appeared to have been ransacked – he had left it in a tidy condition that O
morning but when he returned he found things had been moved around and
P P
the bed clothing on the bed in disarray. However nothing was missing
Q from his room. Q
R R
4. PWs 1 and 2, police officers in plain clothes and on foot patrol
S S
in the building came upon the Defendant inside Room B2 – he was seen by
T PW1 squatting near the bed in Room B2 and ransacking the bed. When he T
U
asked what he was doing, the Defendant stood and rushed from the room, U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-3-
A A
B B
pushing aside PWs 1 and 2 who were standing at the doorway of Room B2.
C The police officers chased after the Defendant and were able to subdue him C
st nd
after a brief struggle at the landing between the 1 and 2 floors of the
D D
building. When PW1 searched the Defendant there, he found Exhibit P2, a
E silver coloured crowbar, tucked at the back of the Defendant’s jeans, under E
the black upper garment that the Defendant was wearing. The Defendant
F F
was arrested for the offences of burglary and assaulting police officers at
G the scene. He was brought back to the Cheung Sha Wan Police Station G
where a thorough search was conducted on the Defendant, and the
H H
dangerous drugs the subject matter of Count 3 was found in a pocket of the
I Defendant’s jeans. I
J J
K Previous Convictions K
L L
5. The Defendant has 21 previous convictions in 15 court
M M
appearances. His criminal record dates back to 1997. Although he has no
N N
previous convictions similar to burglary, he does have dishonesty related
O
offences. He also has previous drugs related offences as well as a previous O
offence of assaulting a police officer.
P P
Q Q
Mitigation
R R
S S
6. Mr. Polson indicated that he was on bail in respect of the last
T conviction on his criminal record when the present offences were T
committed. That must be viewed as an aggravating feature. The Defendant
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-4-
A A
B B
is a divorced man and had been in Hong Kong since 1996. He worked as a
C transport worker. C
D D
7. In passing sentence I have carefully considered everything
E E
said on the Defendant’s behalf by M. Polson.
F F
G G
8. The correct starting point for a single burglary of residential
H premises committed by a first offender of full age where there are no H
aggravating or mitigating features is 3 years imprisonment.
I I
J J
9. We had heard evidence that the whole building was awaiting
K K
re-development although it was occupied. Lower starting points have been
L taken where the premises are not occupied. In HKSAR v Chau Man Ying, L
CACC 439/2011, the appellant was sentenced to 2 years after trial for
M M
burglary of a flat in a vacant residential building awaiting redevelopment.
N N
O O
10. Considering the burglary was opportunistic; the premises
P were almost derelict and the value of the property stolen was very low the P
Court of Appeal substituted a sentence which enabled the appellant’s
Q Q
immediate release. The appellant had been in custody almost 12 months.
R R
S S
11. I do not find that the burglary herein was opportunistic.. The
T flat was secured and needed to be broken into to gain entry. The Defendant T
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-5-
A A
B B
was carrying tools with him at the time of the burglary, namely the
C crowbar, Exhibit P2. C
D D
12. In HKSAR v Lee Chiu Yui, CACC 24/2014, the Court of
E E
Appeal held where the burglar had with him an array of housebreaking
F F
tools when burgling a temporary office which was cleared out with all
G
properties removed and was ready to be demolished the appropriate G
sentence after trial was 2 years imprisonment.
H H
I I
13. I accept that on this occasion nothing had been stolen - that is
J because the police officers came upon the Defendant when he was J
ransacking the room. I accept that even if property had been stolen, it is
K K
unlikely that it would have been of high value.
L L
M M
14. In the present case, I find that there was no aggravating
N features in the commission of the burglary offence in that nothing had been N
stolen, the Defendant committed the offence alone, the offence was
O O
committed at a time when the occupant had left the premises and the
P possibility of confrontation was low, and the damage caused to the door P
was not substantial.
Q Q
R R
15. I am therefore satisfied the appropriate starting point is 2 1/2
S S
years imprisonment for Count 1.
T T
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-6-
A A
B B
16. A person convicted of an offence contrary to Section 63 of the
C Police Force Ordinance, Cap 232 is liable upon summary conviction to C
imprisonment for 6 months and a fine of $5,000.
D D
E E
17. Having considered the circumstances of the offence here, and
F F
the circumstances of the Defendant, I am satisfied that the appropriate
G
starting point is 1 month’s imprisonment. G
H H
18. The dangerous drugs in Count 3 is one plastic packet
I I
containing 0.12 grammes of a crystalline solid containing
J methamphetamine hydrochloride. Section 8(2) of the Dangerous Drugs J
Ordinanance, Cap. 134, provides that on conviction upon indictment a
K K
person is liable to a fine of $1,000,000 and, subject to section 54A, to
L imprisonment for 7 years. Section 54A requires the Court to consider a L
Drug Addiction Treatment Centre Report unless in the same proceedings
M M
the person is sentenced to imprisonment of more than 9 months.
N N
O O
19. As the sentence in respect of Count 1 would exceed 9 months’
P imprisonment, it is not necessary to call for a Drug Addiction Treatment P
Centre Report.
Q Q
R R
20. Having considered the circumstances of the offence in respect
S S
of Count 3, as well as the circumstances of the Defendant, I am satisfied
T that the appropriate starting point is 6 months’ imprisonment. T
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V
-7-
A A
B B
21. These are separate and distinct offences warranting
C consecutive sentences but I do bear in mind the totality principle of C
sentence. I shall order that the sentences in respect of Counts 1 and 2 be
D D
served concurrently, and that for Count 3 be served consecutively to the
E sentence for Counts 1 and 2. That is a total of 3 years’ imprisonment. E
F F
G
22. The Defendant has been convicted after trial. He has shown G
no remorse. I can see no features to warrant any further discount in
H H
sentence. He is sentenced to a total of 3 years’ imprisonment.
I I
J J
K Bina Chainrai K
L Deputy District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/11.10.2016/ DCCC 458/2016/Sentence
V V