區域法院（刑事）Deputy District Judge M.H. Tsui9/4/2025[2025] HKDC 657
DCCC238/2024
A A
B B
DCCC 238/2024
C [2025] HKDC 657 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 238 OF 2024
F F
G ---------------------------------------- G
HKSAR
H H
v
I I
SADAWER HUSSAIN
J J
----------------------------------------
K K
Before: Deputy District Judge M.H. Tsui
L L
Date: 10 April 2025
M Present: Mr Felix Tam, Counsel on Fiat, for HKSAR M
Mr John Wright, instructed by Messrs Adrian Yeung &
N N
Cheng, assigned by DLA, for the defendant
O O
Offence: [1] Burglary（入屋犯法罪）
P [2] Failing to surrender to custody without reasonable cause P
（無合理因由而沒有按照法庭的指定歸押）
Q Q
R -------------------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant was convicted on his own plea of one count of
C burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. C
210 and one count of failing to surrender to custody without reasonable
D D
cause, contrary to section 9L of the Criminal Procedure Ordinance, Cap.
E 221. E
F F
Facts
G G
Charge 1
H H
I 2. The facts admitted by the defendant reveal that Mr. Tse (PW1) I
resided on the 8th level (7/F) and rooftop of the tenement house at 80 Apliu
J J
Street, Sham Shui Po. He occupied the rooftop while his nephew occupied
K Tong 8/F. Mr Lee (PW2) resided on the rooftop of 78 Apliu Street, Sham K
Shui Po. Rooftop 78 and rooftop 80 are connected.
L L
M 3. On 8 October 2023 at about 2300 hours, PW1 placed his M
wallet inside the left front pocket of a pair of shorts which he placed
N N
together with a navy patterned bag on the sofa inside rooftop 80. He retired
O to bed. O
P P
4. On 9 October 2023 at about 0930 hours, PW2 heard noises in
Q Q
the area of rooftops 78 and 80. He went to the door and saw the defendant
R
on the rooftops looking around where tires were placed. PW2 took a video R
of the defendant. PW2 told the defendant to leave, but the defendant
S S
claimed that there was no way out and asked PW2 to open the door for him
T
to leave. PW2 asked the defendant to leave via the route he entered the T
rooftop. The defendant walked towards rooftop 80.
U U
V V
-3-
A A
B B
C 5. After the defendant left, PW2 immediately informed PW1 and C
PW1’s nephew. Upon waking at around 1100 hours PW1 found his wallet
D D
missing and informed his nephew. PW1 found his bag in the area of
E rooftop 80. E
F F
6. PW1 lost a wallet (value: HK$20), an elderly octopus card
G (value: HK$500), a JoyYou card (value: HK$50), his identity card, G
mainland travel permit and HK$1,000 cash.
H H
I 7. At 1640 hours on 9 October 2023, PC 16483 intercepted the I
defendant on Guilin Street near Apliu Street. The defendant was holding
J J
2 pink plastic bags. Upon preliminary body search, police found a red
K screwdriver and a spanner amongst other items in one of the plastic bags. K
At around 1644 hours, PC 16483 arrested the defendant.
L L
M 8. On 10 October 2023, police officer conducted a video M
recorded interview (“VRI”) with the defendant with the assistance of an
N N
English - Cantonese interpreter and an English - Urdu interpreter. The
O defendant admitted under caution that he was the person captured in PW2’s O
video, and that he was at the material location but did not reside at the
P P
location.
Q Q
R
9. The defendant was a Pakistani. He has been granted Form 8 R
Recognizance since 17 December 2019.
S S
T
Charge 2 T
U U
V V
-4-
A A
B B
10. The defendant was granted bail in the Magistrates’ Court on
C 18 October 2023. He failed to appear in the District Court for mention as C
appointed on 19 March 2024. The defendant was arrested on 11 May 2024,
D D
under caution he claimed that he could not find the building.
E E
11. At all material times, the defendant entered rooftop 80 as a
F F
trespasser. He stole a wallet, an elderly octopus card, a JoyYou card, an
G identity card, a mainland travel permit and HK$1,000 cash (Charge 1). G
H H
12. At all material times, the defendant, being a person admitted
I to bail, without reasonable cause, failed to surrender to custody as should I
have been appointed by a court (Charge 2).
J J
K Previous Convictions K
L L
13. The defendant is of clear record.
M M
Antecedents, Personal Background and Mitigation
N N
O 14. The defendant is 37 years of age. He was born in Pakistan. O
He arrived in Hong Kong and was released on his own recognizance in
P P
2019.
Q Q
R
15. The defence cited authorities including HKSAR v Pinto [2024] R
HKCA 1164 and HKSAR v Lo Kam Fai CACC 374/2014.
S S
T
Sentencing Consideration T
U U
V V
-5-
A A
B B
16. Burglary is a serious offence which carries a maximum
C imprisonment term of 14 years. The sentencing guidelines for the offence C
of burglary provided that burglary of a domestic premises would attract a
D D
sentence of 3 years’ imprisonment after trial, even if the offender was of
E clear record and in the absence of any aggravating factors. The burglary E
of a non-domestic premises would usually attract a starting point of 30
F F
months’ imprisonment.
G G
17. The authority of HKSAR v Cheng Wai Kai [2008] HKCA 226
H H
set out factors that could be considered as aggravating for which sentence
I would be increased at the starting point. The aggravating factors included: I
(1) the offence is carefully planned and skillfully executed involving the
J J
use of heavy instrument or equipment; (2) the offence is committed by two
K or more people; (3) the offence targets at substantial premises and involves K
substantial properties; (4) the offender is a professional burglar and not just
L L
an opportunist; (5) the offender has previous convictions, particularly
M previous conviction of similar nature, and (6) the offender commits M
multiple offences.
N N
O 18. The defence agreed that the present case involved the trespass O
onto rooftop 80 which was part of a private property, and was occupied by
P P
PW1 and PW2 at the time of the burglary. The facts of the case support
Q Q
rooftops 78 and 80 were part of a domestic premise. I adopt a starting point
R
of 36 months. R
S S
19. There was no evidence to suggest the use of weapons,
T
however the defendant’s presence at the material rooftop did wake PW2 T
from his sleep. PW2 would no doubt have been startled and alarmed to
U U
V V
-6-
A A
B B
find the defendant on his domestic premise in the early morning hours. The
C encounter led to a confrontation between the defendant and PW2. C
D D
20. The properties stolen included PW1’s identity card and
E mainland travel permit. The reckless disposal of such important personal E
identity documents could lead to serious consequences and/or loss to PW1.
F F
G 21. The defendant was a Form 8 holder released on his own G
recognizance at the time of the offence. The court considered it “a grave
H H
concern” that defendants who were permitted to remain in Hong Kong as
I non-refoulement claimants should commit a burglary of any premises [see I
Pinto]. I consider this an aggravating factor for which an enhancement in
J J
sentence is appropriate. I enhance the starting point by 3 months.
K K
22. I adopt a starting point of 39 months’ imprisonment for charge
L L
1.
M M
23. Charge 2 involved the abscondment of the defendant. He was
N N
granted bail on 18 October 2023 but failed to appear in the District Court
O hearing on 19 March 2024. He was subsequently re-arrested by the police O
on 11 May 2024.
P P
Q
24. The defendant claimed upon re-arrest that “he could not find Q
R
the building”. I did not accept the defendant’s explanation and indicated R
the court’s view to the defence. The defendant had been in Hong Kong
S S
since 2019, even if he did not know the location of the District Court, he
T
could have made enquiries with his legal representatives, the police or by T
contacting the Court. The defendant made no attempt to contact the court
U U
V V
-7-
A A
B B
or his legal representatives after his failure to attend court. His actions or
C lack of reflected his intention to abscond rather than a failure to locate the C
law court building.
D D
E 25. On the issue of the applicable deduction of sentence for the E
defendant’s guilty plea to charge 1, the defence agreed that the defendant
F F
was not entitled to a full one third deduction for charge 1, and that the
G sentences for charges 1 and 2 would normally be ordered to run G
consecutively.
H H
I 26. The defendant pleaded guilty to charge 1, under normal I
circumstance he would be entitled to a full one third deduction to the
J J
starting point of 39 months’ imprisonment. By absconding, the defendant
K had rendered the administration of justice more costly and more time- K
consuming, and the judge was entitled to exercise his discretion by
L L
reducing the percentage of discount that he would otherwise obtained [see
M HKSAR v Ko Chun Hung [2007] HKCA 490]. M
N N
27. The defendant absconded for a relatively short duration. He
O failed to surrender himself and eventually was re-arrested by the police. I O
consider one-fourth deduction of his sentence to be appropriate. Therefore
P P
I sentence the defendant to 29 months’ imprisonment for charge 1.
Q Q
R
28. I adopt a sentence of 6 months’ imprisonment for charge 2 R
and allow for a one-third deduction to reflect his guilty plea. The defendant
S S
is sentenced to 4 months’ imprisonment for charge 2.
T T
U U
V V
-8-
A A
B B
29. The 2 charges are separate and distinct in terms of the nature
C of the offences, the date, location and the circumstances of their C
commission, as such the sentences should be served wholly consecutively.
D D
I have considered the principle of totality. I order 4 months’ imprisonment
E term of charge 2 be served consecutively to the 29 months’ imprisonment E
imposed on charge 1. I order a total sentence of 33 months’ imprisonment
F F
for charges 1 and 2.
G G
H H
I I
J J
K ( M.H. Tsui ) K
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 238/2024
C [2025] HKDC 657 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 238 OF 2024
F F
G ---------------------------------------- G
HKSAR
H H
v
I I
SADAWER HUSSAIN
J J
----------------------------------------
K K
Before: Deputy District Judge M.H. Tsui
L L
Date: 10 April 2025
M Present: Mr Felix Tam, Counsel on Fiat, for HKSAR M
Mr John Wright, instructed by Messrs Adrian Yeung &
N N
Cheng, assigned by DLA, for the defendant
O O
Offence: [1] Burglary（入屋犯法罪）
P [2] Failing to surrender to custody without reasonable cause P
（無合理因由而沒有按照法庭的指定歸押）
Q Q
R -------------------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant was convicted on his own plea of one count of
C burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. C
210 and one count of failing to surrender to custody without reasonable
D D
cause, contrary to section 9L of the Criminal Procedure Ordinance, Cap.
E 221. E
F F
Facts
G G
Charge 1
H H
I 2. The facts admitted by the defendant reveal that Mr. Tse (PW1) I
resided on the 8th level (7/F) and rooftop of the tenement house at 80 Apliu
J J
Street, Sham Shui Po. He occupied the rooftop while his nephew occupied
K Tong 8/F. Mr Lee (PW2) resided on the rooftop of 78 Apliu Street, Sham K
Shui Po. Rooftop 78 and rooftop 80 are connected.
L L
M 3. On 8 October 2023 at about 2300 hours, PW1 placed his M
wallet inside the left front pocket of a pair of shorts which he placed
N N
together with a navy patterned bag on the sofa inside rooftop 80. He retired
O to bed. O
P P
4. On 9 October 2023 at about 0930 hours, PW2 heard noises in
Q Q
the area of rooftops 78 and 80. He went to the door and saw the defendant
R
on the rooftops looking around where tires were placed. PW2 took a video R
of the defendant. PW2 told the defendant to leave, but the defendant
S S
claimed that there was no way out and asked PW2 to open the door for him
T
to leave. PW2 asked the defendant to leave via the route he entered the T
rooftop. The defendant walked towards rooftop 80.
U U
V V
-3-
A A
B B
C 5. After the defendant left, PW2 immediately informed PW1 and C
PW1’s nephew. Upon waking at around 1100 hours PW1 found his wallet
D D
missing and informed his nephew. PW1 found his bag in the area of
E rooftop 80. E
F F
6. PW1 lost a wallet (value: HK$20), an elderly octopus card
G (value: HK$500), a JoyYou card (value: HK$50), his identity card, G
mainland travel permit and HK$1,000 cash.
H H
I 7. At 1640 hours on 9 October 2023, PC 16483 intercepted the I
defendant on Guilin Street near Apliu Street. The defendant was holding
J J
2 pink plastic bags. Upon preliminary body search, police found a red
K screwdriver and a spanner amongst other items in one of the plastic bags. K
At around 1644 hours, PC 16483 arrested the defendant.
L L
M 8. On 10 October 2023, police officer conducted a video M
recorded interview (“VRI”) with the defendant with the assistance of an
N N
English - Cantonese interpreter and an English - Urdu interpreter. The
O defendant admitted under caution that he was the person captured in PW2’s O
video, and that he was at the material location but did not reside at the
P P
location.
Q Q
R
9. The defendant was a Pakistani. He has been granted Form 8 R
Recognizance since 17 December 2019.
S S
T
Charge 2 T
U U
V V
-4-
A A
B B
10. The defendant was granted bail in the Magistrates’ Court on
C 18 October 2023. He failed to appear in the District Court for mention as C
appointed on 19 March 2024. The defendant was arrested on 11 May 2024,
D D
under caution he claimed that he could not find the building.
E E
11. At all material times, the defendant entered rooftop 80 as a
F F
trespasser. He stole a wallet, an elderly octopus card, a JoyYou card, an
G identity card, a mainland travel permit and HK$1,000 cash (Charge 1). G
H H
12. At all material times, the defendant, being a person admitted
I to bail, without reasonable cause, failed to surrender to custody as should I
have been appointed by a court (Charge 2).
J J
K Previous Convictions K
L L
13. The defendant is of clear record.
M M
Antecedents, Personal Background and Mitigation
N N
O 14. The defendant is 37 years of age. He was born in Pakistan. O
He arrived in Hong Kong and was released on his own recognizance in
P P
2019.
Q Q
R
15. The defence cited authorities including HKSAR v Pinto [2024] R
HKCA 1164 and HKSAR v Lo Kam Fai CACC 374/2014.
S S
T
Sentencing Consideration T
U U
V V
-5-
A A
B B
16. Burglary is a serious offence which carries a maximum
C imprisonment term of 14 years. The sentencing guidelines for the offence C
of burglary provided that burglary of a domestic premises would attract a
D D
sentence of 3 years’ imprisonment after trial, even if the offender was of
E clear record and in the absence of any aggravating factors. The burglary E
of a non-domestic premises would usually attract a starting point of 30
F F
months’ imprisonment.
G G
17. The authority of HKSAR v Cheng Wai Kai [2008] HKCA 226
H H
set out factors that could be considered as aggravating for which sentence
I would be increased at the starting point. The aggravating factors included: I
(1) the offence is carefully planned and skillfully executed involving the
J J
use of heavy instrument or equipment; (2) the offence is committed by two
K or more people; (3) the offence targets at substantial premises and involves K
substantial properties; (4) the offender is a professional burglar and not just
L L
an opportunist; (5) the offender has previous convictions, particularly
M previous conviction of similar nature, and (6) the offender commits M
multiple offences.
N N
O 18. The defence agreed that the present case involved the trespass O
onto rooftop 80 which was part of a private property, and was occupied by
P P
PW1 and PW2 at the time of the burglary. The facts of the case support
Q Q
rooftops 78 and 80 were part of a domestic premise. I adopt a starting point
R
of 36 months. R
S S
19. There was no evidence to suggest the use of weapons,
T
however the defendant’s presence at the material rooftop did wake PW2 T
from his sleep. PW2 would no doubt have been startled and alarmed to
U U
V V
-6-
A A
B B
find the defendant on his domestic premise in the early morning hours. The
C encounter led to a confrontation between the defendant and PW2. C
D D
20. The properties stolen included PW1’s identity card and
E mainland travel permit. The reckless disposal of such important personal E
identity documents could lead to serious consequences and/or loss to PW1.
F F
G 21. The defendant was a Form 8 holder released on his own G
recognizance at the time of the offence. The court considered it “a grave
H H
concern” that defendants who were permitted to remain in Hong Kong as
I non-refoulement claimants should commit a burglary of any premises [see I
Pinto]. I consider this an aggravating factor for which an enhancement in
J J
sentence is appropriate. I enhance the starting point by 3 months.
K K
22. I adopt a starting point of 39 months’ imprisonment for charge
L L
1.
M M
23. Charge 2 involved the abscondment of the defendant. He was
N N
granted bail on 18 October 2023 but failed to appear in the District Court
O hearing on 19 March 2024. He was subsequently re-arrested by the police O
on 11 May 2024.
P P
Q
24. The defendant claimed upon re-arrest that “he could not find Q
R
the building”. I did not accept the defendant’s explanation and indicated R
the court’s view to the defence. The defendant had been in Hong Kong
S S
since 2019, even if he did not know the location of the District Court, he
T
could have made enquiries with his legal representatives, the police or by T
contacting the Court. The defendant made no attempt to contact the court
U U
V V
-7-
A A
B B
or his legal representatives after his failure to attend court. His actions or
C lack of reflected his intention to abscond rather than a failure to locate the C
law court building.
D D
E 25. On the issue of the applicable deduction of sentence for the E
defendant’s guilty plea to charge 1, the defence agreed that the defendant
F F
was not entitled to a full one third deduction for charge 1, and that the
G sentences for charges 1 and 2 would normally be ordered to run G
consecutively.
H H
I 26. The defendant pleaded guilty to charge 1, under normal I
circumstance he would be entitled to a full one third deduction to the
J J
starting point of 39 months’ imprisonment. By absconding, the defendant
K had rendered the administration of justice more costly and more time- K
consuming, and the judge was entitled to exercise his discretion by
L L
reducing the percentage of discount that he would otherwise obtained [see
M HKSAR v Ko Chun Hung [2007] HKCA 490]. M
N N
27. The defendant absconded for a relatively short duration. He
O failed to surrender himself and eventually was re-arrested by the police. I O
consider one-fourth deduction of his sentence to be appropriate. Therefore
P P
I sentence the defendant to 29 months’ imprisonment for charge 1.
Q Q
R
28. I adopt a sentence of 6 months’ imprisonment for charge 2 R
and allow for a one-third deduction to reflect his guilty plea. The defendant
S S
is sentenced to 4 months’ imprisonment for charge 2.
T T
U U
V V
-8-
A A
B B
29. The 2 charges are separate and distinct in terms of the nature
C of the offences, the date, location and the circumstances of their C
commission, as such the sentences should be served wholly consecutively.
D D
I have considered the principle of totality. I order 4 months’ imprisonment
E term of charge 2 be served consecutively to the 29 months’ imprisonment E
imposed on charge 1. I order a total sentence of 33 months’ imprisonment
F F
for charges 1 and 2.
G G
H H
I I
J J
K ( M.H. Tsui ) K
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V