HKSAR v. Chen Jianbiao

DCCC 1060/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1060 OF 2015

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

The first charge

2.Mr Fung, occupant of Room 934, Hoi Yu House, Hoi Fu Court, Mong Kok, left the flat secured at around 7:15am on 28 May 2015.  When he returned to the flat at around 6:45pm on the same day, he found the wooden door prized open and left ajar.  There were signs of ransacking in the flat.  Case was reported.   

3.Upon checking, Mr Fung’s Re-entry permit, a Mainland China transportation smartcard with store value of about RMB¥30 and cash of RMB¥30 were found missing.  Mr Fung last checked these properties before he left the flat at around 7:15am that day.  He had placed them into two shoeboxes inside a cabinet in the living room.  These stolen properties were not recovered.

4.The fingerprint of the left middle finger of the defendant was found from underneath the wooden board of Mr Fung’s bed in the flat.  Mr Fung and his family did not know the defendant.

The second charge

5.Madam Lam is the occupant of the premises at 8^th floor, No. 156 Apliu Street, Sham Shui Po.  At around 2pm on 9 July 2015, Madam Lam left the flat secured.  When Madam Lam returned to the flat at around 4pm the same day, she found the rear door of the flat was left ajar.  There were signs of ransacking in the living room and her bedroom. 

6.Upon checking, Madam Lam found the door of her living room cupboard broken and one bottle of wine valued at about HK$200 missing.  Some coins of a total value of about HK$30 were also missing.  Case was reported.  The stolen properties were not recovered.

7.The print of the left palm of the defendant was found from the drawer of the wardrobe in Madam Lam’s bedroom.  Madam Lam did not know the defendant. 

8.The defendant was subsequently arrested and cautioned for the two offences in October 2015.

9.According to the defendant’s movement record, the defendant was in Hong Kong on 28 May 2015 and 9 July 2015.

Mitigation

10.The defendant is aged 36.  He was a salesman of mobile phone earning about HK$10,000 per month.  He is married with a wife and a 6-year-old son, both residing in the Mainland.  He lived with his parents and elder brother.  He is suffering from depression while his elder brother has mental illness.  He is the sole breadwinner of the family.  He has 4 previous criminal conviction records, one of which relate to theft and the others relate to dangerous drugs.  He is now serving a sentence in the Drug Addiction Treatment Centre for the offences of theft and possession of dangerous drugs respectively.  It was submitted that this is the defendant’s

first conviction for burglary and he committed the offences out of greed.

On the offence dates, the defendant had taken medication for depression and his judgment was affected by the medication.

11.For the first charge, the defendant walked to the building in question, found an iron bar and used it to prize open the door and entered the flat.  For the second charge, the defendant found the door of the flat not properly closed and he just sneaked in.  He did damage the cupboard of the flat but he did not do so with any instrument.

12.It was submitted that the value of the stolen properties was not high and no injury was caused to any occupant.  The defendant is remorseful.  Given the defendant’s background, this court was urged to impose a lenient and concurrent sentence on the defendant.

Sentence

13.There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

14.As far as the defendant’s previous conviction records are concerned, he has no previous conviction for burglary. For the conviction for theft, that offence of theft was committed after the present offences and

the conviction is also after commission of the present offences. Therefore, at the time of the commission of these offences, the defendant did not have

conviction of offence involving dishonesty. In the circumstances, for the purpose of sentencing in this case, the defendant is regarded as having no previous conviction for offence involving dishonesty.

15.In the present case, I find there was no aggravating feature in the commission of the offences in that the value of the stolen properties is not high, the defendant committed the offences alone, the offences were committed at the time when the occupants had left the premises and that although the cupboard of second premises was damaged, the damage was not substantial.  As the premises involved are residential premises, the appropriate starting point for each charge is 3 years’ imprisonment.  Since the defendant pleaded guilty to the charges, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence for each charge is reduced to 2 years’ imprisonment.

16.Family hardship is not a valid factor justifying a further reduction of the sentence.  Other than the defendant’s guilty plea, I do not see any other mitigating factors in this case.   

17.The two burglaries committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 30 months is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order that 6 months of the sentence for the second charge to be served consecutive to the sentence for the first charge, making a total sentence of 30 months’ imprisonment.  I hereby sentence the defendant to 30 months’ imprisonment.