HKSAR v. Li Hon Hau and Another

DCCC 80/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 80 OF 2017

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Reasons for Sentence

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1.Both defendants have pleaded guilty to a joint charge of burglary. On 27 November last year, they were both trespassers in a flat in a building in Johnston Road, Wanchai. They were found inside the flat by police officers. This flat is in a building that is essentially vacant. Most of the flats have been purchased by a developer whose intention is to purchase all the flats to redevelop the entire site. The flats have been vacant for some time, and as is normally the case in similar situations, tenants left behind goods and personal belongings they do not want, items that have been abandoned by previous tenants but technically now owned by the developer. I am sure none of the items, including electrical appliances, are of any use or value to the developer but to break into such a unit owned by a developer is still technically a burglary.

2.The 1st defendant admits that he broke or knocked down the door.  Both admit trying to dismantle an air-conditioner, each hoping to be able to resell it for some money.  Both defendants fully and frankly admitted their offence to the police. 

3.The defendants have previous convictions.  Both in fact have a long history of drug addiction which may explain their need for money earned in this manner.

4.I have been told of each defendant’s background.  The 1st defendant is 34 years old.  He has a total of 15 previous convictions obtained over 11 court appearances; he has four burglary convictions.  However, they are old, the last one being some 17 years ago.  The rest of his convictions relate mostly to drugs.  Clearly, he has been in and out of institutions or prison from a young age.  

5.He is born in Hong Kong and a Hong Kong resident, divorced, and at the time of his arrest was cohabiting with the 2nd defendant.  Apparently, both were living in the roof or the cockloft of this very same building.  I imagine it was not under a legitimate lease.  In fact, I have been told whilst they were living there, the water and electricity were cut off.  The 1st defendant was unemployed and receiving CSSA of about $5,000 a month.  He would have needed that money to support both of them because the 2nd defendant at the time of her arrest was a Form 8 holder and could not work in Hong Kong.

6.The 2nd defendant is 35 years old, born in China.  She married a Hong Kong resident in 2002 and had a child out of that marriage in 2003.  She came to Hong Kong on a one-way permit in 2008.  She separated from her husband in 2011.  During that time since arriving, she was legitimately working in restaurants.  In fact, she would have qualified for a seven-year residency and an identity card but apparently did not apply.  Therefore, according to the law, she is here illegally.  In 2006 October, she was convicted of a breach of condition of stay and sentenced to 7 days’ imprisonment which was suspended for 2 years.  This burglary offence was committed just after that suspended sentence was imposed.  She is in breach of that suspended sentence.  I have also been told that sadly, her 13-year-old daughter has no parent responsible enough to care for her and has to live in Po Leung Kuk childrens home.

7.The normal starting point for a burglary of a domestic premise is 3 years if there are no aggravating or mitigating factors.  However, in this case, I feel I can depart from that starting point because it would be obvious to all that the flat was not occupied, the building was vacant, awaiting redevelopment, and the items left behind by previous tenants or owners would be of little value.  The defendants are what you can describe as opportunistic burglars.  I can differentiate these defendants and this scenario to a burglar breaking into my home.

8.Defendants, please stand up.  Your best mitigation is your plea of guilty today.  I have considered your backgrounds, in particular the 1st defendant who has similar convictions but they were a long time ago.  Both were fully co-operative with the police after their arrest. 

9.Having taken those matters into account as well as where the burglary took place, I find a starting point of 2 years’ imprisonment appropriate.  Both defendants have pleaded, are entitled to a discount of one-third.  After that discount is applied, both are sentenced to 1 year and 4 months’ imprisonment.  Do you understand?

INTERPRETER: Both understood.

10.The 2nd Defendant, having taken into account why you breached your condition of stay back in last year and the fact that it is so different from today’s charge, I am going to exercise my discretion not to activate that suspended sentence.  You will not have to serve that 7 days. However, it is still in force.  Do you understand?

2ND DEFENDANT: Understood.