HKSAR v. Lu Ziqiang

DCCC 33/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 33 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary, two charges of theft and one charge of breach of condition of stay.

2.The defendant is in fact a visitor from the Mainland.  He entered Hong Kong on 7 October 2015.  He was expected to remain until 14 October 2015. 

3.On 18 October 2015, he was stopped by Police for enquiries and they found on him a total of four bank cards and a smartphone. One of the bank cards belonged to prosecution witness 1, another one belonged to prosecution witness 2.  Two of the bank cards were in the name of another person and the Police conducted enquiries about these items.  The defendant had said he picked up the properties in Sheung Wan that day at about 10 am.

4.As far as the first bank card was concerned, that was the property of PW1 and had been taken as part of a domestic burglary which occurred at her home in Lantau Island and she placed her waist bag on her bed and left the house unattended but the door unlocked.  The waist bag contained a number of items that are particularised in the charge including the bank card exhibit which is Exhibit 1.  When the witness returned to her house she found the waist bag was missing. 

5.The defendant admits that he entered the house as a trespasser and stole the property and the waist bag from it and that is the 1st charge.

6.The 2nd charge relates to two more of the bank cards, Exhibits 3 and 4, and also the smartphone.  These are alleged to be items that belonged to others and not belonging to the defendant and were allegedly stolen on 18 October 2015 which is the date the defendant says he found them. 

7.As far as the 3rd charge is concerned, the Exhibit 2 which is a bank card found on the defendant was taken on 10 October 2015.  PW2 was working as a sales assistant at an outlet in Hennessy Road in Wanchai and her black handbag was taken.  One of the items inside that was Exhibit 2 together with other items and she has confirmed that Exhibit 2 was her property.

8.The charge that the prosecution have brought against the defendant alleges in relation to that matter, that he stole that on 18 October 2015 and it would appear from that it is accepted that that is again a theft by finding.

9.The defendant was interviewed and made various admissions.  He said he picked up the stolen properties in a bush near where he was arrested and in respect of the burglary he admitted entering the house and stealing the waist bag on 15 October 2015.  He said he had gone to Mui Wo to find his wife.  He admitted disposing of the other items that were found in the waist bag including the mobile phone.

10.The defendant is a person of clear record.  He is 31 years old, a resident of the Mainland.  I am told he worked in a circus prior to coming here and he had come to Hong Kong in order to search for his wife who left him.  As far as mitigation is concerned, he refers to his clear record, that the charges in relation to certain charges 2 and 3 only alleged that he had found the items and stole them in that way and in relation to charge 4 that his overstaying is of a short period, only four days. 

11.As far as sentence is concerned, it is also said there is no aggravating features in relation to the burglary.  It is accepted that this is a domestic burglary and that there are clear guidelines for sentencing in respect of domestic burglaries.  The clear guideline for sentencing in respect of domestic burglaries is that in respect of a first offender who commits a domestic burglary the starting point for sentence for conviction after trial will be 3 years' imprisonment.  As far as this case is concerned, there would appear to be no reason to depart from the guideline sentence. 

12.So in respect of charge 1, I will take the 3 year starting point as my starting point and reduce that by one-third for the defendant's plea of guilty.  So on charge 1, he will be sentenced to 2 years' imprisonment. 

13.Charges 2 and 3 are similar in effect.  They are first offences for the defendant involving a theft by finding.  In respect of each of those charges, that is charge 2 and 3, I will take a starting point of 6 weeks' imprisonment and reduce that to 4 weeks' imprisonment for his plea of guilty.

14.In respect of charge 4, what I shall do is in fact take a starting point of 6 days' imprisonment and reduce that to 4 days' imprisonment for his plea of guilty.

15.Having regard to the overall totality, I shall simply order that the sentences on charges 2, 3 and 4 run concurrently to each other but consecutively to charge 1.  That will lead to an overall sentence of 2 years and 4 weeks' imprisonment.