HKSAR v. Xu Weimin

DCCC 67/2018

[2018] HKDC 635

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 67 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

The first charge

2.At the material times, the restaurant known as “The King of Traditional Fire Duck” was situated at Ground Floor, No. 53 Mut Wah Street, Kwun Tong (“the Restaurant”) with only one entrance at No. 53 Mut Wah Street.  On 15 October 2017 at around 9pm, Mr. Lee, the person in charge of the Restaurant, closed the Restaurant but part of the metal gate of the entrance could not be shut.  He therefore used one of the shelves in the Restaurant to block the entrance and left the premises.

3.On 16 October 2017 at around 6am, Mr. Lee was informed by staff of the Restaurant that some metal drawers were pried open and the cash therein was missing.  CCTV recording revealed that the defendant entered the Restaurant on that day at around 4:30am and opened the drawers.  Upon checking, Mr. Lee confirmed cash of HK$15,000 had gone missing. The matter was reported to the police.

The second charge

4.On 19 November 2017 at around 9pm, Mr. Lee closed the Restaurant for maintenance.  As workers were conducting the maintenance work inside the Restaurant, Mr. Lee did not shut and lock the door of the entrance nor switch off the lights before he left.  Workers left the premises at around 12:01am on 20 November 2017.

5.At around 2:30am on the same day, while PC 18412 and his teammates were patrolling in the vicinity of Mut Wah Street, he saw the defendant acting furtively outside the Restaurant.  The officer thus kept the defendant under observation.  At around 2:39am, he saw the defendant enter the Restaurant through its entrance and thus summoned his colleagues for assistance.

6.At around 2:41am, the officer saw the defendant coming out from the Restaurant and thus intercepted him.  The officer entered the Restaurant and found some drawers prized open.  He also found a screwdriver in a rice cooker.  Upon search, he found a large number of coins in the bag carried by the defendant.  The officer arrested and cautioned the defendant.  Under caution, the defendant said he entered the Restaurant to answer a call of nature and then took away the coins on a table. 

7.Suspecting the defendant might be involved in the burglary on 16 October 2017, the officer further arrested and cautioned the defendant.  Under caution, the defendant denied the offence.

8.Upon checking by Mr. Lee at around 3:05am on the same day, it was confirmed that coins of about HK$500 were missing. 

9.In subsequent video-recorded interviews, the defendant admitted under caution that on 16 October 2017, he saw the door of the Restaurant was not locked and he went in.  He opened some drawers and took money of about HK$600.  He stole because his family in China needed money but he already spent all the money on food.  On 20 November 2017, the defendant entered the restaurant to answer the call of nature.  Then, he saw a screwdriver and used it to pry open the drawers.  He then stole the coins from the drawers.  He stole to pay for his travel expenses to China.

10.CCTV recording in the Restaurant showed that on 20 November 2017, the defendant took out a tool from his bag and used it to pry open the drawers.  He then took some coins from the drawers.

Mitigation

11.The defendant is aged 45.  He is married with a wife and two daughters, all of them live in the Mainland.  He came to Hong Kong in 2013 and stayed with his father.  He later moved out. After he quitted his job in August 2017, he remained unemployed and slept in the park near the Restaurant.  He planned to return to the Mainland to unite with his own family.

12.The defendant has two previous conviction records, both of which are not related to burglary.  Both convictions were in 2003.

13.It was submitted that the defendant was an opportunistic burglar as the metal gate or door of the Restaurant was unlocked on both occasions.  His act was akin to a thief who walks into open premises, which should attract a lower starting point when compared with the normal burglary of non-domestic premises (see HKSAR v Sim Ka Wing, CACC 450/2000 and HKSAR v Cheung To Ming, CACC 406/2005).  It was further submitted that the amount stolen on both occasions was not high and the stolen property for the second charge was recovered.  The defendant only committed the offences as he had no money.  The court was urged to impose a lenient sentence on the defendant. 

Sentence

14.There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2.5 years’ imprisonment.

15.Although this defendant has two previous conviction records, those are not related to burglary.  Therefore, in sentencing, I will not consider his previous conviction records. 

16.For the two offences in question, I accept the defence submissions that given the metal gate or door of the Restaurant was not locked, I should sentence the defendant on the basis that he was a “sneak thief”.  In the circumstances of this case where there is no aggravating feature, I consider the appropriate starting point for each charge is 18 months’ imprisonment. Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence for each charge is reduced to 12 months’ imprisonment. 

17.The two burglaries committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 20 months is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order that 8 months of the sentence for the second charge to be served consecutive to the sentence for the first charge, making a total sentence of 20 months’ imprisonment.  I hereby sentence the defendant to 20 months’ imprisonment.