HKSAR v. Fan Zhouyuan

DCCC 729/2017

[2018] HKDC 254

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 729 OF 2017

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to a charge of burglary of non-domestic premises being a restaurant under renovation at the Ground Floor of No 205 Ki Lung Street, Sham Shui Po, and was so convicted. 

2.At around 12:35 p.m. on the day of offence, the defendant was spotted pulling the locked padlock of the door in the wooden hoarding surrounding the restaurant by a renovation worker across the street.  After pulling the padlock repeatedly, the defendant entered the premises.  He was later seen squatting down by the side of a worker’s toolbox and putting a black staple gun worth $300 into his own recycle bag.  Defendant was later subdued.

3.Upon arrest by police and under caution, defendant admitted he intended to go stealing in the restaurant after breaking the padlock and he was discovered before he managed to steal anything. 

4.In the video-recorded interview, he said he came to the area to find his friend.  He had no prior appointment with his friend.  He had no telephone contact number of his friend.  He entered the premises, ie the restaurant, to try to see if his friends were working there but he did not try to confirm if his friends were there before he entered, ie shouting or knocking on the door.  He did not see his friends and was later arrested.  It is admitted that he entered the restaurant as a trespasser and that he stole a staple gun from the restaurant.

Mitigation

5.Defendant is aged 52.

6.He is married with a son and a wife. 

7.He is a construction site worker earning $14,000 to $15,000 per month and he used to be the sole breadwinner of the family before he committed the present offence.  He has to contribute monthly of RMB4,000 to his son, a university student in the PRC, and also making monthly contribution of roughly 3,000 to $4,000 to his father and elder brother in Foshan. 

8.He has been remanded for the last seven months since the commission of the offence and is said to have committed the offence out of greed.

9.He is remorseful as to what he has done, and he said he was unaware of the serious consequence of the offence at the time of commission.

10.It is said on his behalf that there is no element of extensive planning or sophistication in the commission of the offence and no tool was used.

11.The amount of loss is minimal.

12.No person is hurt or shocked in the commission of the offence. 

13.Mr Lau for the defendant asks this court to adopt a lower starting point than 2 ½ years’ guideline for burglary of non-domestic premises.

14.The defendant has three previous convictions, of which two are related to drugs and one is a theft offence, a theft conviction under section 9 of the Theft Ordinance in 2016, of which the defendant was sentenced to 2 months’ imprisonment suspended for 3 years.

Sentence

15.In passing sentence, I have carefully considered all that was said on the defendant’s behalf by Mr Lau.  I accept there is no previous conviction similar to burglary.  It is well‑established that the appropriate starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigation reasons is that of 2 ½ years, and the case is HKSAR v Sim Ka Wing, CACC 450/2000. 

16.I accept in the present case the defendant acted alone. 

17.No tools were used in breaking open the padlock.  He did not bring any tool in the commission of the offence. 

18.There is absence of sophistication in the commission of the offence. 

19.The value of the property stolen is relatively small. 

20.No one is expected to be within the restaurant at the time.

21.I must say the criminal record of the defendant is not particularly impressive but I do not treat the same as an aggravating feature in the present case. 

22.Having considered the circumstances of the case and all that was said on behalf of the defendant, I will adopt a sentencing starting point of 2 years and 3 months.  Defendant is entitled to full one-third sentencing discount for his guilty plea.  He is therefore sentenced to 18 months’ imprisonment for this charge.

23.Now, going to the suspended sentence of 2 months suspended for 3 years imposed on the defendant way back in January 2016, the present offence was committed 1½ years after the same was imposed. There is no valid ground for this court not activating the same.  Accordingly, the suspended sentence of 2 months is activated and the defendant is sentenced to 2 months for the theft offence and both sentences shall run consecutively.