HKSAR v. Zhan Xiaoqian

DCCC 578/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 578 OF 2017

------------------------------

------------------------------

DCCC 658/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 658 OF 2017

------------------------------

------------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.In each of the cases the defendant was charged with one count of burglary, contrary to section 11(1)(a) and (4) and contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 respectively. The defendant pleaded guilty and admitted the fact, he was convicted accordingly.

FACT

2.The defendant was a visitor to Hong Kong.

DCCC 578/2017

3.At around 4:09 am on 17 March 2017, the defendant was seen walking along Wo Fung Street and looking around in a furtive manner, as he walked towards Luen Shing Street he checked out the entrances of the tong lau buildings along the street.

4.At around 4:12 am the defendant walked quickly into a tong lau building at No 26-28 Luen Shing Street (the Building) and went up the staircase.  As he came before a gate, he tried to open it by pulling the handle of the gate with force for 3 times.  However, he failed to open it and thus left the premises.  The defendant was arrested, under caution he said I did not steal this time, I had nothing to say.

5.At the material time, the defendant attempted to enter as a trespasser part of the Building with intent to steal.

DCCC658/2017

6.At around 8:00 pm on 15 February 2017, Mrs Sun left home for work and left the spare key of the main wooden door on top of the light switch box outside her residence.  At around 5:00 am on 16 February, Mr Sun woke up and found the wooden door opened with the spare key inserted into the doorknob of the door.  The residence of the family has been ransacked, cash of RMB3,700, cash of HK$2,500 and two smartphones were stolen.

7.Fingerprints of the defendant were lifted inside the residence of the Suns family.  The defendant had entered the premises and stole the abovementioned items therein.

MITIGATION

8.The defendant aged 32, with a loitering record in 2011, a visitor to Hong Kong.  The defendant was divorced with a daughter aged 8.  Prior his arrest, he lived with his daughter and his father with mental illness in Shenzhen.  He ran his on-line shop earning RMB3,000 per month but was not able to meet his father medical expenses and his daughter education fee.  He suffered financial difficulties because of his heavy family burden. 

9.The defendant came to Hong Kong to do purchase for his on-line business.  During his stay in Hong Kong he committed the offences because of his financial difficulties.  He was not in a position to compensate the victim; he felt sorry for the victim.  He pleaded guilty, felt remorse for his wrong and urged for leniency.

10.The defendant submitted a mitigation letter and clarified that his mother was living in the neighbourhood with his sister and would look after his daughter for him during his stay in Hong Kong.  

SENTENCE

11.The customary starting point of sentence for domestic burglary is 3 years’ imprisonment.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.  Same principle is applicable to domestic and non-domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.

12.Mr Pang for the defendant referred me to the case of HKSAR v Cheung To Ming CACC406/2005, the appellant pleaded guilty to a charge of burglary of non-domestic premises, involving the theft of two packets of instant noodles, and illegal remaining in Hong Kong. The Court of Appeal considered that nothing of any real value was taken, the appellant was taken as a “sneak thief” who was able to walk into the Centre concerned at some stage after one or more others had broken into it, and reduced his sentence of burglary to 12 months’ imprisonment, representing a starting point of 18 months.

DCCC 658/2017

13.The defendant committed the burglary in DCCC 658/2017 in Feburary 2017 by using the spare key placed outside the residence flat, ransacked and stole cash and valuable items inside while the occupant was at home sleeping.  Mr Pang submitted that the defendant found the gate on the second floor was left ajar and he took the opportunity to enter the premises, he then noticed the spare key left outside Room A, and used the key to enter Room A and committed the offence.  He had sold the mobile phones and used up all the monies on family and medical expenses.  This was a classic case of domestic burglary.  Although there was no force entry, it was with high risk of confrontation with occupants of Room A.  The adoption of the customary starting point of 3 years is appropriate in this case.

DCCC578/2017

14.The defendant did not attempt to force entry in DCCC578/2017 after he was not able to pull open the gate of the building concerned.  No one was put into fear.  I consider a starting point of 2.5 years would be appropriate in the circumstances.    

15.However, the fact that the defendant was a visitor and after successfully committed the burglary in February, went out to look around again for his prey during his stay in Hong Kong in March amounted to an aggravating factors and I increased the starting point of this case by 3 months to 33 months.

16.The defendant pleaded guilty at the earliest opportunity, he is entitled to the full 1/3 discount.  I do not consider there to be any mitigating factor that call for further deduction.  The two cases happened in February 2017 and March 2017 respectively, they were distinct and separate incidents.  However, taking into account of the totality principal, I would order the sentence to run partly concurrent making a total of 30 months.

ORDER

DCCC 578/2017

17.The defendant is sentenced to 22 months’ imprisonment.

DCCC 658/2017

18.The defendant is sentenced to 24 months’ imprisonment, 16 months concurrent with DCCC 578/2017, making a total of 30 months.