HKSAR v. Huang Rongxiang (also known as Huang Rongbin)

DCCC 309/2018

[2018] HKDC 1244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 309 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences, burglary and attempted wounding, contrary to section 19 of Cap 212.

2.They arise out of an incident that occurred about lunchtime on 6 February this year, 2018, at a construction site in Yau Ma Tei.  The construction site was of the Guangzhou-Shenzhen-Hong Kong Express Rail Link Section.  The offence location is part of the Express Rail Link Station, which, the facts tell us, was a structure of considerable size and intended to be permanent - the basement level has a permanent ceiling and there are concrete pillars - and it is agreed this location could be properly described as a building.

3.At about lunchtime, the victim and his friend were resting at the level B1, which would be the basement level.  The victim had lain down on a wooden door and placed his mobile phone on his right-hand side.  He there fell asleep.

4.The defendant was then seen by PW2, who was nearby, to approach PW1, take away the mobile phone and leave.  He shouted and alerted PW1, who woke up, and then they chased the defendant.  They managed to intercept the defendant and then the defendant took out a cutter and almost stabbed PW1.  PW2 was able to push the defendant and he fell to the ground, and then PW1 and the second witness, PW2, subdued the defendant.

5.The defendant was then later arrested by police.  He told the police he had come to the location to borrow from a friend.  He got through an entrance with no security.  Those are the facts that are admitted.

6.The defendant is aged 38.  He is a permanent resident of the People’s Republic of China and was in Hong Kong as a visitor, although he does have family in Hong Kong, namely a wife, who is a permanent resident in Hong Kong and is a cleaning worker.  The defendant has three children in China.  He has been unemployed, but is employed as a - when he works, he is a decoration worker.  He has a criminal record in Hong Kong.  Of some relevance is back in 2007 he was convicted of theft and sentenced to 6 months’ imprisonment.

7.As far as mitigation is concerned, the defendant says he is remorseful and wishes to reunite with his three children in China. In mitigation it is also said that it was a construction site, so it was a large area and did not require any forced entry.  It is said as far as the attempted wounding is concerned, that is said to be a lower level of offence and no actual injury was caused.

8.As far as the calculation of sentence is concerned, there is a guideline for offences such as burglary.  Naturally, this is a non-domestic premises where a guideline sentence, a starting point of 2½ years or 30 months’ imprisonment is appropriate for a person of clear record pleading not guilty.  This offence appears to me to contain all the elements of burglary.  Of course, the risk of burglary is heightened when there are people present.  I do not consider there are any factors to aggravate the sentence, and other than the plea of guilty by the defendant, none too mitigated.

9.So, on the 1st charge, I will take a starting point at 30 months’ imprisonment.  I reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

10.On the 2nd charge, although there were no injuries, the potential for injury is great where an edged weapon, or bladed weapon is used.  I mean, as I say, fortunately there was no actual stabbing and no actual injury.  Again, there is no guideline for sentence in respect of the section 19 offence.  I shall take a starting point of 12 months’ imprisonment. I reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

11.Now, the offences were committed one after another, and although they were committed around the same time and around the same place, they are two identifiable separate offences and could be served entirely consecutively.

12.I consider that an overall correct total for these two offences is a sentence of 24 months’ imprisonment.  So, I shall order that 4 months of the 2nd charge be served consecutively to the 1st charge and the balance concurrently, giving a total sentence therefore of 24 months’ imprisonment.