HKSAR v. Wei Qiang and Another

DCCC 695/2019

[2020] HKDC 156

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 695 OF 2019

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Reasons for Sentence

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1.The 1st and 2nd defendant have pleaded guilty to a single charge of burglary. The premises they burgled is a non‑domestic premises, at a factory, the Fulwealth Metal Factory in Tai Po in the New Territories.

2.I am told the defendants are holders of valid China two-way permits and they were permitted to enter Hong Kong for seven days some two days before, and entered Hong Kong two days before the burglary.

3.The details of the burglary is set out in the Summary of Facts that has been agreed.  Insofar as their relevance for sentence, it can be said that the premises appear to be a one-storey standalone building surrounded by a wall, the front entrance of which was secured by a password combination lock.  The building itself had windows which were not locked.  There was an office room in the building which was locked.  The access to the building appears to have been achieved by climbing a wall from another premises that was adjacent.

4.On 24 April 2019, the director of the company that I assume owned the building left the building and checked the doors and the gates were locked, but we do know the windows were closed but not locked.

5.In the early hours of the next morning, 25 April, the defendants climbed into the premises with the intention obviously to steal.  They damaged the password combination lock, however were not able to access through that door.  They then climbed into the building through the unlocked windows.  There were crowbars inside the  building and the defendants used those to try to open the office room but it does not appear that they entered it.  There were no valuables to steal in the building or the defendants were unable to find anything of value to steal in the building.

6.Police arrived at the scene.  The defendants fled by climbing over the surrounding wall and were subsequently arrested.

7.As far as damage within the building is concerned, the combination lock on the front door was damaged, the windows were opened, there were some prizing marks to the door of the office room and no property went missing.

8.Those are the basic facts of the case.  Turning to the defendants’ background.  Both defendants have clear records in Hong Kong.

9.The 1st defendant is aged 42, born and educated in the Chinese mainland.  He has worked as a factory worker, more recently as a driver.  He was married, now divorced.  I am informed he has a daughter who is an applicant for university education but the defendant does not know if she is successful in that or not.  I am told he has parents who are described as aged, which means over 70, with some health problems and that he supports them.

10.The 2nd defendant likewise is of clear record. He is a younger man aged 30, again of clear record in Hong Kong, educated to primary school level and has worked as a factory worker/restaurant owner.  He, I am told, is single, more recently working as a factory worker in Shenzhen. He has family liabilities, particularly around his father who is unwell, and the 2nd defendant, like the 1st defendant, because the parents are aged, is the sole breadwinner of the family.

11.Turning to the approach to sentence in this case.  This is a standard non-domestic premises burglary and the guideline starting point for a person who pleads not guilty to a burglary of a non-domestic premises and is of clear record is that there should be a starting point of 2½ years’ imprisonment, which is 30 months’ imprisonment.  That starting point can be increased having regard to exacerbating factors and can be reduced having regard to mitigating factors.

12.As far as this burglary is concerned, I take into account the observations of the courts in setting the guidelines that the 30-month starting point will, cases will involve a measure of planning and a degree of premeditation and planning already will be built into the conventional starting point.  That starting point can be lowered in the case of an opportunistic burglary and can be increased in the case of professional criminals who plan their burglaries with care and steal goods and cash of considerable value.

13.Now, as far as the burglary itself is concerned, the defendants do not appear to me, on the basis of what I have heard of them, to be professional criminals.  The burglary does not involve a great deal of planning - simply an observation of the ways to access the building - and certainly no goods or cash of value was taken.  I find that the normal starting point of 30 months’ imprisonment is appropriate for the nature of this burglary.

14.There is one aggravating factor that I must take into account and that is the fact that the defendants acted together.  That is an aggravating factor and will lead in normal cases to an increase to the starting point for sentence.

15.Secondly, there is the possibility on the facts as presented to the court that the defendants entered Hong Kong in order to commit this burglary and that is based on the fact that they entered Hong Kong on 23 April 2019, which was two days before the incident, so there is a close proximity to the commission of the burglary and the defendants entering into Hong Kong.  It is said that from this an inference can be drawn that the defendants came here solely for the purpose of committing a burglary, which will be an aggravating factor.

16.Both defendants say in their mitigation that they had lost everything in Hong Kong before they came to commit the burglary and they committed the burglary to see if they could find some money.  I can see from the exhibits that the only items found on the defendants were their clothing.  There appears to be no identity documents, no wallet, money or phone.  So there is some support for their contention in mitigation that they themselves were the victims of either a loss or theft themselves, and on the basis of that, that would mean the court could not necessarily draw the inference that they were solely here in order to commit the burglary.

17.Therefore I hold, in this case, there is only one aggravating factor and that is the fact that they committed the burglary jointly.

18.Taking that into account, I will set a starting point for sentence for both defendants at 33 months’ imprisonment as opposed to 30 months’ imprisonment.  Both defendants are entitled to a full one-third discount - that is the only mitigating factor I consider that exists in this case - and that will lead to a final sentence of 22 months’ imprisonment for both defendants on the charge they have pleaded guilty to.