HKSAR v. Wu Donggen

DCCC 1038/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1038 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary. The facts are straightforward.

2.On 24 February 2016, the defendant entered as a trespasser a family home on the 2nd Floor of a village house in Tseng Lan Shue Village, Sai Kung.  Between 12 midnight and 6 am, the defendant entered the premises through a bathroom window whilst the occupants were asleep.  When the occupant woke up, she found evidence of ransacking in her living room and a bedroom.  The defendant stole cash of about HK$10,000 and RMB900 from a bag in the living room.  A Samsung digital notepad was also taken from a drawer of a desk in the living room.  The defendant left a palm print on a drawer of a cabinet in the living room.

3.The defendant was an illegal immigrant from China at the time of this burglary.  He was arrested in March 2016 for illegally remaining in Hong Kong.  He was sentenced to 18 months’ imprisonment for illegally remaining in a Magistracy in May 2016.  Later, the Police matched the defendant’s palm print to the palm print left in the burgled premises.  He was arrested whilst serving the sentence for illegally remaining in Hong Kong in July 2016.  Under caution, he did not admit this burglary. 

4.The defendant is not a man with a clear record in Hong Kong.  He has nine previous convictions obtained over four occasions including four burglary convictions, the first being in 2010.  His two previous convictions were illegally remaining in 2011 and 2013.  His last conviction was in May 2016 and he was sentenced to 4 weeks’ imprisonment for resisting or obstructing a Police officer as well as sentenced to 18 months, as I have said, for remaining in Hong Kong illegally.  I repeat that he had committed the burglary in February whilst illegally in Hong Kong.

5.Normally a burglary of a domestic premises would attract a starting point of 3 years’ imprisonment in the absence of any mitigating or aggravating factors. 

6.I have heard full mitigation.  The defendant is 44 years old with a family in mainland China.  His wife requires medical attention and he needs money to pay for her medical bills.  He lost his job and came to Hong Kong looking for money to pay for her medical expenses.  He does have an 18 year old daughter but she is unable to support them. 

7.Defendant, please stand up.  I have considered mitigation put forward and the facts of this case and despite your plea, I do find there are aggravating factors which do exist.  In this case the premises was occupied and the burglary happened in the dead of night.  It is an aggravating factor that the defendant ransacked the occupant’s home whilst they were asleep in their beds.  This is also the defendant’s fifth burglary conviction in Hong Kong.  I categorise the defendant as a serial burglar.  I do not believe that the starting point of 3 years is appropriate where there are aggravating factors that exist.  I increase that starting point that is the norm by 6 months to reflect these factors.  Therefore the starting point is one of 3 years and 6 months.

8.The defendant has pleaded guilty and is entitled to a discount of one-third.  After that discount is applied for this offence, the defendant is sentenced to 2 years and 4 months’ imprisonment. 

9.I will not make it concurrent to the sentence the defendant is presently serving.  It has been said in the higher courts that any sentence for an offence committed whilst illegally in Hong Kong should be consecutive.  Therefore I order that this sentence imposed today run consecutively to any presently serving sentence.