DCCC625/2017

DCCC625/2017

A A B DCCC 625/2017 B C C IN THE DISTRICT COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION D CRIMINAL CASE NO. 625 OF 2017 E E ----------------------------------- F HKSAR F v. G G WASAT KHAN ----------------------------------- H H Before: HH Judge Douglas T.H. Yau I Date: 3 November 2017 at 12:36 pm I Present: Mr. Bruce Tse, Counsel on fiat, for HKSAR J J Mr. A.B. Nasir of M/s Nasirs, assigned by DLA, for the K K Defendant L Offence: Burglary (入屋犯法罪) L ---------------------------- M M Reasons for Sentence N ---------------------------- N 1. The defendant pleaded guilty to one charge of burglary. Particulars O O of the charge are that he on 28th April 2017 entered as a trespasser a P hut on the rooftop of nos.467-469 Reclamation Street in Mongkok P with intent to steal therein. Q Q R Summary of facts R S 2. The hut in question is a walled structure with metal sheets as S roofing material. It was used mainly as a storage room by Mr Orwin T T and Ms Law, the occupiers. U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 2 - A A B 3. At around 4pm on the charge date, Mr Orwin found that the door B latch of the iron gate of the hut was bent. C C D 4. Later on, at around 9:15pm, two pedestrians standing at a bus stop D near nos.467-469 Reclamation Street (hereinafter as “the building”) E E were hit by glass fragments that fell from the Building. They F suffered very minor injuries. F G G 5. Police officers were summoned and they patrolled the Building to H look for clues of where the glass fragments might have come from. H I I th 6. They found parts of a glass window at the stairway between the 8 J floor and the rooftop of the Building missing. J K K 7. Upon investigation, Mr Orwin told the Police officers about how he L L found the latch of the iron gate of the hut bent earlier on in the day. M M 8. Police officers proceeded to look inside the hut and found the N N defendant hiding underneath the bed. O O 9. Upon inquiry, the defendant told the Police officers, in Cantonese, P P that he intended to steal inside the hut. The defendant was then Q arrested. Q R R 10. Under caution, the defendant said that he had brought an electric S grinder and connected it to the electricity distribution box in the S staircase to use it to open the lock of the hut so that he could enter to T T steal. He accidentally broke the glass window in the process. U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 3 - A A B 11. Mr Orwin confirmed that nothing was stolen from the hut, and the B only damage caused was the to the door latch of the iron gate. The C C padlock of the iron gate was found on the floor outside the hut. D D 12. The defendant admitted to the final paragraph of the summary of E E facts, which states that the defendant had entered the hut as a F trespasser with intent to steal. F G G Previous convictions H H 13. The defendant has 8 previous convictions from 6 court appearances. I Of the 8 convictions, 3 were for thefts and one for attempted theft. I J J 14. The last two convictions are both dated 23rd May 2017, which was K after he had committed the present burglary, and should not be held K against him for the purpose of sentencing in this case. L L M 15. Those 2 convictions were for attempted theft and possession of M dangerous drugs when he was made the subject of a Drug Addiction N N rd Treatment Centre order on 23 May 2017. O O P 16. At the time of the defendant’s commission of the burglary, the P defendant’s latest convictions were for theft and breach of Q Q suspended sentence imposed for an earlier theft case. For that, the R defendant was sentenced to a total of 3 weeks’ imprisonment. R S S 17. The defendant was released from jail on 7th December 2016. He T committed the burglary on 28th April 2017, being 4 months and 21 T days after his release. U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 4 - A A B Mitigation B C 18. Mr Nasir provided the court with a very helpful bundle for C mitigation. D D E 19. The defendant is 38 and married. His wife and three sons reside in E Pakistan. The defendant is unemployed and is a recipient of F F Comprehensive Social Security Assistance. G G 20. Mr Nasir submits that since the hut was likely to be an illegal H H structure, it could not be legally occupied. That being the case, it I could not be categorized as a domestic or residential premises. I J J 21. Mr Nasir pointed out that the Building is an old building and the K roof is a common area not belonging to any individual owner. K L L 22. It is Mr Nasir’s submissions that the premises that the defendant M burgled should not be categorized as a domestic premises for the M purpose of sentencing. N N O O Sentence P Domestic or non-domestic premises? P Q 23. First of all, I do not agree with Mr Nasir’s submissions that an Q illegal structure cannot be legally occupied and therefore cannot be R R a residential premises. S S 24. It is the true nature of the use of the premises that is relevant when T T considering whether a premises is domestic or not, as demonstrated U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 5 - A A B by the rationale behind the Court of Appeal’s findings on the hotel B room being akin to a domestic premises in the case of HKSAR v Ng C C Wai-hing [2003] 2 HKLRD 338; CACC 621/2002. D D 25. In Ng Wai-hing, a hotel room was burgled and it came for the Court E E of Appeal to consider whether the hotel room should be categorized F as a domestic or non-domestic premises for the purpose of F sentencing. G G H 26. In deciding that it is akin to domestic premises, the Court pointed H out why burglary of a domestic premises should attract a more I I severe sentence: J J “28. Burglary is a serious offence and burglary of domestic K K premises is even more serious as there is always the L L possibility of confrontation with the occupant who will be M subject to extreme fright when a total stranger invades his M privacy. The gravamen in burglary of domestic premises is N N the fear felt by victims that a thief should have invaded their O own house. That is why it may be regarded as an aggravating O factor in burglary of premises which are expected to be P P occupied. Q Q R 29. It may not be too helpful to decide if a hotel room should R be categorized as domestic or non-domestic for sentencing S S purpose. A hotel is in a category of its own. But the T aggravating factor involved in burglary of domestic premises T is certainly present in the case of burglary of a hotel room.” U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 6 - A A B 27. In our present case, the hut was being used for storage purpose. It is B located on the rooftop of an old residential building. There is C C nothing to suggest on the outside that it was being occupied as a D home. This is strengthened by the fact that the door was locked D from the outside by way of a latch with the use of a padlock. With a E E latch on the outside, the occupants inside could easily have been F prevented from leaving their home if someone applied the latch and F locked it. This is not how a place of residence would be secured. G G H 28. I find that the facts tend to suggest that the premises was not being H used as a residence. For that reason, I find that, for sentencing I I purpose in our present case, the customary sentence for J non-domestic premises should be applied. J K K 29. It is not disputed that the guideline sentence for burglary of a L non-domestic premises for a first offender is that of 30 months’ L M imprisonment. M N N Aggravating factor O O 30. Although the use of the electric grinder by the defendant to open the P lock on the iron gate of the hut does suggest some planning, I find P that the circumstances of the execution of his plan not sophisticated Q Q or serious enough to warrant the sentence to be enhanced on that R basis. R S S 31. I find, however, the fact that the defendant committed the present T offence about 4 months after his last release an aggravating factor. T It must be borne in mind that the defendant was in breach of the U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V  - 7 - A A B earlier suspended sentence which was fully activated. Yet, the B defendant was undeterred and chose to commit the burglary within C C a relatively short time after his release. D D 32. For this aggravating factor, I will enhance the sentence by 3 months, E E leading to a sentence of 33 months’ imprisonment. F F Mitigating factor G G 33. I find that the only mitigating factor is the defendant’s timely guilty H H plea. For that, he is granted the full one-third discount. I I 34. The defendant is, therefore, sentenced to 22 months’ imprisonment. J J K 35. Pursuant to s.6A(1)(b) of the Drug Addiction Treatment Centre K Ordinance, Cap.244, the DATC order imposed on 23rd May 2017 L L shall cease to have effect upon the imposition of the present M sentence. M N N O O (Douglas T.H. Yau) P P District Judge Q Q R R S S T T U U CRT21/3.11.2017 DCCC625/2017/Reasons for Sentence V V