HKSAR v. Wei Tinggan

DCCC 4/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 4 OF 2016 ____________   HKSAR     v     WEI Tinggan   ____________ Before : H.H. Judge G. Lam Date : 19 February 2016 Present : Ms. Irene POON, SPP, of the Department of Justice, for HKSAR. Mr. LAM Yau Yee of M/s Chung & Kwan, assigned by the Director of Legal Aid, for the defendant.

Offences:

(1) & (2) Burglary（入屋犯法）

REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Burglary". He came to Hong Kong twice from the mainland and burgled 2 residential flats in less than 2 months.

Summary of Facts

Charge 1

2.Madam NG (PW1) and her husband Mr. NG (PW2) resided at the address particularized in Charge 1.

3.About 4:15 a.m. on 19 September 2015, PW1 was using her iPad in the sitting room.  Apart from the light in the kitchen, all the lights in the sitting room were switched off.  Suddenly, she saw a male trespasser (later identified as the defendant) standing in the sitting room counting money.  PW1 immediately raised hue and cry.  The defendant dashed into the kitchen.

4.PW1 and PW2 followed him into the kitchen.  They saw the defendant climbing down along the water pipes and then lost sight of him from the window.  PW1 soon saw the defendant appearing at the 2^nd Floor podium.  She saw him jumping down a slope from the garden and then disappeared.  The Police was alerted.

5.Police officers searched the escape route taken by the defendant.  In a nearby carpark, they found some banknotes in the sum of $1,750 on the ground and its canopy.

6.Upon checking the contents of her wallet (which was placed in the sitting room), PW1 found cash in the sum of $4,000 missing.

7.The defendant was arrested for Charge 1 on 17 November 2015.

Charge 2

8.Mr. YIN (PW3) and his elder sister resided at the address particularized in Charge 2.

9.About 12:10 a.m. on 8 November 2015, PW3 returned home and saw a male trespasser wearing a pair of white gloves (later identified as the defendant) standing in his sister's bedroom.  PW3 switched on the torch function of his mobile phone and the lights in the bedroom.  Upon seeing PW3, the defendant immediately climbed out of a kitchen window and climbed down along the water pipes.  The Police was alerted.

10.Police officers conducted a sweeping exercise at the scene.  They located the defendant at an air-conditioner platform on the 19^th Floor of the building.  A pair of white gloves was found next to him.  Under caution, he admitted having burgled a flat in the same building that evening.

11.PW3 confirmed nothing was stolen from his home.

12.At an identification parade conducted on 9 November 2015, PW3 identified the defendant as the burglar whom he saw in his home on 8 November 2015.

Mitigation & Sentence

13.The defendant is 34 and has a clear record.  Defence lawyer Mr. LAM informed me that the defendant is single and resides with his father in Guangxi Province.

14.In mitigation, Mr. LAM submitted that the defendant was a farmer earning RMB3,000 per month, but lost his job in 2015.  Worse still, his father had to receive an operation for a leg injury after an accident.  The defendant had borrowed RMB34,000 from relatives.  Being pressed for repayment by his relatives, the defendant sought help from a fellow villager, who arranged for him to come to Hong Kong.  The fellow villager led the defendant to the crime scenes and told him which unit to burgle.  Mr. LAM submitted that the defendant did not use any tools or weapons; he only had a pair gloves with him.  He entered premises at which, he believed, no one was present.  He climbed into the flats through windows which were left open.  The defendant feels shameful and has shown genuine remorse.

15.It is plain that the only purpose of the defendant coming to Hong Kong was to burgle. I have little knowledge of the social welfare system in the mainland, but I can imagine that it may not be as comprehensive as in Hong Kong. I am prepared to accept that the defendant had financial difficulty. Be that as it may, it is absolutely not an excuse for him to come to Hong Kong to commit crimes. The logic is absurd. Regardless of his reasons (unemployment or debts owed to relatives), the Hong Kong courtshave, time after time, expressedin very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

16.The normal starting point for domestic burglary is 3 years' imprisonment. The defendant came to Hong Kong twice in less than 2 months to burgle, an aggravating feature[1] exists in the present case. The residents in the respective flats were no doubt alarmed by the defendant's presence at their homes in the middle of the night. On the other hand, I note that PW1 lost only $4,000 and PW3 suffered no loss.

17.For each charge, I adopt a starting point of 3 years' imprisonment. With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charges 1 and 2 is 2 years' imprisonment each.

18.Bearing in mind the totality principle, I consider a global starting point of 45 months to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 30 months. Hence, I order 6 months in Charge 2 to run consecutive to Charge 1; thereby arriving at a total prison term of 30 months.

	(G. Lam)
	District Judge