HKSAR v. Yang Zi and Others

HCCC 336/2019

[2020] HKCFI 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 336 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The Charges and Pleas

The four defendants before me are all residents in mainland China. They pleaded guilty to the following charges and admitted the facts pertaining to those charges at the committal proceedings: Charge 1, burglary, against D4 only; Charge 2, burglary, against D4 only; Charge 3, burglary, against D4 only; Charge 4, conspiracy to handle stolen goods, against D1 only; and Charge 5, conspiracy to burgle, against D2, D3, D4 and D5.

The three burglaries, the subject matters of Charges 1 to 3, were committed by D4 on 23 September 2017, 26 September 2017 and 1 June 2018 respectively at three different residential premises in Sai Kung, New Territories.

Charge 1 concerned $640,115 worth of stolen properties; Charge 2 concerned $63,213 worth of stolen properties; Charge 3 concerned $315,000 worth of stolen properties.

For Charge 4, D1 admitted in the cautioned video-recorded interview after his arrest that he was told by D4 to come to Hong Kong to carry their stolen goods back to the mainland and he was promised a reward of several hundred dollars. D1 agreed to do so. For Charge 5, D2, D3, D4 and D5 admitted under caution after their arrest that they were in a conspiracy to burgle residential units in Hong Kong.

Charge 1 against D4

Charge 1 concerned D4’s burglary of a house at Wang Che Village, Ho Chung Road, Sai Kung on 23 September 2017. A CCTV of the burgled house showed that at 2.14 pm on 23 September 2017, three males, one in cap and oral mask, the other two in balaclava, all wearing gloves, broke into the house from the backdoor. Upon checking, the owner found that the backdoor of the ground floor of the house and the door of the kitchen on the ground floor were prised open. There were ransacking signs at various places of the house and the properties particularized in Charge 1 were found stolen.

Charge 2 against D4

Charge 2 concerned D4’s burglary of a house at Hing Keng Shek Village, Hing King Shek Road, Sai Kung on 26 September 2017. A CCTV of the burgled house showed that at about 5.01 pm on 26 September 2017, three males in similar appearance as in Charge 1 climbed over the concrete wall of the house into the garden and prised open a side window on the ground floor of the house to gain entry. The trio left after seven minutes, carrying various items including a large box and a box. Upon checking, the owner found that there were signs of ransacking at various places of the house and the properties as particularized in Charge 2 were found stolen.

Discovery of the Tent Used by the Burglars

At 4.30 pm on 6 October 2017, police officers found a tent on the hillside of Pak Kong, Sai Kung during police patrol. A man exited the tent and fled when the officers were approaching the tent. 54 items including cash, valuables, clothes similar to the clothes worn by the three men in Charges 1 and 2, two knives, a crowbar, a two-way permit and an entry permit record of a man surnamed Wang and some cigarette butts were found inside or around the tent.

At 9.55 am on the same day, during police patrol on the hillside of Pak Kong, a man was seen fleeing away and he left behind two backpacks which contained 211 items of valuables and cash.

Out of all the items seized from these two locations, the owner of the burgled house of Charge 1 identified 35 items as hers. The total value of the recovered properties is about $630,115. Two watches are still missing and they were worth $40,000 in total. The owner of the burgled house of Charge 2 identified 122 items as hers. The total value of the recovered properties is about $63,213.

D4’s DNA was found on a pair of boxer shorts in one of the backpacks together with stolen properties found in Charges 1 and 2 and nine out of 10 cigarette butts found around the tent. DNA samples of three other men were also found on the other items seized from the tent.

Charge 3 against D4

Charge 3 concerned D4’s burglary of a house at Long Keng San Tsuen, Tai Mong Tsai Road, Sai Kung on 1 June 2018. A CCTV of the burgled house showed that at about 7.52 pm on 1 June 2018, a man was outside the house and at about 8.25 pm, a man ransacked inside the house for about 10 minutes. Valuables including cash, jewelleries and watches with a total value of $315,000 were found stolen.

Charges 4 against D1 and 5 against D2 to D5 and the Arrest of D1 to D5

At 7.55 pm on 21 July 2018, D1 was seen using a mobile phone and acting furtively outside No 11 Hang Hau Wing Lung Road, Ng Fai Tin, Tseung Kwan O. Officers stopped him and revealed their police identity. D1 immediately sent a WeChat message “Don’t come” with his phone. Clothes, a torch and various items were found inside D1’s backpack. D1 said, when enquired, that he was going home but later said he was to visit a friend.

At around 8.08 pm, a taxi arrived at the scene, followed by a police vehicle. All four taxi passengers ran away without payment once the taxi stopped. Earlier on, the taxi driver picked up those four passengers at the junction of Yan Yee Road and Mo Ying Road, and was told to drive to Ng Fai Tin. After the four passengers rushed out of the taxi, one of the four threw a green backpack onto the ground, wherein a black backpack containing a crowbar, a knife with plastic hose, a pair of gloves, three oral masks, three hats, three shirts and an earpiece were found.

D2 was one of the passengers who was caught after he alighted from the taxi and tried to flee. He was subdued. When questioned by the police, he said he did not have any identity document and he was an illegal immigrant. An oral mask, two pairs of gloves, a black hat, a torch, a 15-cm-long rope and a backpack were found inside D2’s backpack. Under caution, D2 admitted his role as a lookout and he was to carry away the stolen goods.

D3 was another passenger. He was caught soon after he alighted from the taxi and ran away from the police. Cash, mobile phone, torch, lighter and various items were found in D3’s waist bag. D1’s message of “Don’t come” was found in D3’s phone. Under caution, D3 admitted that he was an illegal immigrant, coming to Hong Kong to work illegally, but then he knew the other people came to commit offences.

D1 was also arrested. He admitted under caution that he waited there for his townsmen to steal in the house or houses, after which he would carry the stolen goods back to the mainland. Upon search of D1’s phone, the message of “Don’t come” sent by D1 was found, and prior to that, a message from the other end said, “Arriving in 10 minutes”. Cash in Hong Kong dollars and renminbi and a smartphone were found on D1.

The remaining two passengers ran away to the hillside. The police then conducted a sweeping operation in the area. A road block was set up near Clear Water Bay Road near the bus stop at Silver Cape Road.

At 1.15 am on 22 July 2018, a taxi driver received an order to drive from Mang Kung Uk. At 1.53 pm, a passenger got on board at Mang Kung Uk and he asked the driver to drive to Ng Fai Tin to pick up two men, and those two men would get off at “Chong Kee” on Fan Kam Road. At Ng Fai Tin, that passenger alighted and D4 and D5 got on board.

At around 2 am, the taxi was approaching the road block near Silver Cape Road. D4 and D5 repeatedly asked the driver to stop but since the taxi was too close to the road block, the driver could not stop and he followed the instructions of the police officers to drive the taxi to the search area. D4 and D5 ran away when the taxi stopped at the road block at Silver Cape Road, Sai Kung.

D5 was caught at the taxi door as he tried to flee. A torch was found inside his waist bag. Under caution, he admitted that he intended to take taxi with several friends to steal in the house or houses in Hang Hau. He fled as his friends were arrested by the police.

During the chase of D4, four officers successfully went after D4 and two of them caught D4’s trousers but they successively fell down as D4 forcefully twisted his waist. As a result, one officer had abrasion in his left hand and waist. The other officer had right elbow abrasion and bleeding. Another officer caught D4’s left ankle. D4 fell down and kept struggling and stepping on the officer’s hands with his right feet. The officer suffered abrasions in his left arm and pain in two fingers. D4 was then subdued and arrested.

Cash in Hong Kong dollars and renminbi, a torch and a mobile phone were found in D4’s waist bag. No identification document of D4 was found. Under caution, D4 admitted that he intended to steal with others and he fled away when he was discovered.

A backpack and a recycle bag containing a shirt, wet towel and a bottle of water were found inside the taxi. These items did not belong to the taxi driver.

Cautioned Video-recorded Interviews of the Defendants

D1 admitted in his cautioned video-recorded interview that:

(a) On the day before arriving in Hong Kong, D4 told him to come to Hong Kong to carry their stolen goods back to the mainland, after which he would receive several hundred dollars. He agreed to do so.

(b) D2 is his cousin and D3 is his elder in the village.

(c) D4 by WeChat told him to go to Hang Hau Wing Lung Road at around noontime on 20 July 2018. He arrived in Hong Kong through Lo Wu Terminal at around 5 pm on 21 July 2018.

(d) He knew that his townsmen in Maoming, that is D2 to D5, came to Hong Kong by illegal means and they would steal in Hang Hau Wing Lung Road.

(e) The items found in his backpack were his, including a torch. It was the first he helped D4 to do thing of this kind.

(f) The cash found on him was his money.

(g) He was unemployed in China at that time; and

(h) He sent the message “Don’t come” to D3 to tell them not to come as he was afraid that D2 to D5 would go stealing and be caught by the police.

D2 admitted in his cautioned video-recorded interview that:

(a) He came from Maoming in mainland China. He was unemployed at the time.

(b) D1 is his cousin and D3 his uncle. He knew D4 from the time they were in mainland China. He knew a man called “Ah Luk” from the hilltop in Sai Kung. They used WeChat to communicate.

(c) He was in Maoming when Charges 1 and 2 took place and he did not recognize the stolen goods in both charges.

(d) At the time of Charge 3, he was in Sai Kung but he had never been to the vicinity of the offence location.

(e) Ah Luk arranged for him to come to Hong Kong by boat. He, Ah Luk and D3 to D4 came to Hong Kong together on 18 or 19 February 2018 and they resided on a hilltop in Sai Kung.

(f) He appeared in Hang Hau Wing Lung Road as Ah Luk and D4 arranged for him to be a lookout and wait for the house owners to turn off their lights and sleep. Then they will enter the house or houses to steal. He would be the one who would carry out the stolen things from the house or houses. D4 was the one who would decide when they would go stealing. They went to Wing Lung Road by taxi.

(g) However, he did not know who was responsible for the role of stealing and they had not specified which house to steal from.

(h) Ah Luk also arranged for D1 to be a lookout/

(i) He fled from the taxi as he was an illegal immigrant. The other passengers on the taxi were Ah Luk and D3 to D4.

(j) The backpack that he carried was his. The oral mask and black cap were for him to put on while acting as a lookout. The extra backpack inside the backpack was for him to carry the stolen goods. The two pairs of gloves were for Ah Luk to enter the house or houses.

(k) Ah Luk bought along a crowbar for prising of the doors; and

(l) The cash and ring found on him were his.

D3 admitted in his cautioned video-recorded interview that:

(a) He came from Maoming in mainland China.

(b) He, D2, D4 and Ah Luk came to Hong Kong by boat about three days ago and they hid in the hill.

(c) D3 initially claimed that he came to Hong Kong to be an illegal worker but later admitted that he came here to steal.

(d) D4 told D2 and him to act as a lookout while D4 and D5 would steal. The proceeds would be split up equally between them.

(e) He knew back in Maoming that the trip to Hong Kong, as requested by D4, was to go stealing.

(f) At around 7 pm on 21 July 2018, D4 ordered a taxi to Ng Fai Tin and the four of them took the taxi. They went to Hang Hau Wing Lung Road to find target and to house or houses to steal. D4 also told D1 to find target there.

(g) He messaged D1 that they would arrive in 10 minutes and D1 messaged them “Don’t come” which he understood that there might be police.

(h) He fled from the taxi as he was an illegal immigrant. Later, he was arrested by the police.

(i) He brought a torch and a lighter with him that night.

(j) Three hats were shown to him. He said that the four of them had worn them before.

(k) A crowbar and a knife with plastic hose belonged to D5; and

(l) The cash found on him was his.

D4 in his cautioned video-recorded interview for Charges 1 and 2 admitted that:

(a) He came to Hong Kong in 2017 once, 10 days before the Mid-Autumn Festival which fell on 4 October 2017 and left before the festival. He came and left Hong Kong by boat without any immigration procedure.

(b) He initially claimed that he has seen the above tent but he did not entered(enter?) but later claimed that he went in the tent and rested for two days.

(c) A photo of a Samsung mobile phone, a stolen property of Charge 1, was shown to him and he recognized that he saw it inside the tent.

(d) A photo of two watches were shown to him and he recognized that he stole them from a two-to-three-storey house in Sai Kung. The two watches are in fact stolen properties of Charge 2 found in one of the two backpacks left behind on the hillside by a male on 7 October 2017. Inside that backpack, other stolen properties of Charge 1 were found. D4 said about a week after his arrival in Hong Kong, he entered into the above village house by prising open the 1st-floor window of the house with a screwdriver. Upon entry, he took the above two watches from the table and other items inside the cabinet and placed all of them inside his backpack. There was no one in the house at the time.

(e) He did not recall what he wore at the time and how many items he stole.

(f) He claimed to be the sole burglar and he spent 10 minutes there.

(g) Afterwards, he went up to the hill and found a tent that did not belong to him. He resided there and placed his backpack with stolen goods there.

(h) Two days later, a Wang Tuxing visited the tent and they got to know each other. On a morning, he and Wang separately fled from police pursuit. He did not carry his backpack with the stolen goods.

(i) He is a smoker and he had smoked in the vicinity of the tent; and

(j) He claimed that the clothes and the waist bag inside the tent did not belong to him.

D4 in his cautioned video-recorded interview for Charge 3 admitted that:

(a) In late May 2018, he landed in Hong Kong by boat with intent to work as an illegal immigrant. 20-odd days later, he left Hong Kong by boat. He arrived in and departed from Hong Kong without any immigration procedure.

(b) About one week after his arrival, he entered a one-storey village house by prising open a ground-floor window with a screwdriver. He stole a bag inside the house and placed the items that he took from a cabinet into the bag.

(c) He found the screwdriver near the house and he disposed of it afterwards.

(d) He pawned all the stolen properties at a pawnshop and earned 30,000 to RMB40,000. He had spent all the money received.

(e) He confirmed that he appeared in a CCTV extract inside the house dated 1 June 2018 at 20.32; and

(f) D2 to D3 and D5 were not involved in this case. They were his townsmen in mainland China. They would call him “Kwong Lee”.

D4 in his cautioned video-recorded interview for Charge 5 admitted that:

(a) About half a month ago when he was in the mainland, his boss, Ah Fat, told him to come to Hong Kong to steal. The stolen properties would be sold by Ah Fat.

(b) At 8 am on the morning about 10 days ago, D2 and D3, Ah Au and he left Shenzhen by boat and landed in Sai Kung, intending to steal. They entered Hong Kong without immigration procedure. They resided on the hillside.

(c) On 21 July 2018, Ah Fat told him to go to Ng Fai Tin to steal in some houses. He made a phone call to the taxi console, asking for a taxi. Later, he boarded the taxi with D2, D3 and Ah Au. All of them were to go stealing in some houses together and the four of them would share 70 per cent of the proceeds whereas Ah Fat would take the remaining 30 per cent.

(d) D2 and Ah Au each brought a backpack. The tools were in Ah Au’s backpack while he also had an empty backpack himself. The crowbar would be used for prising. The white gloves would be used in stealing.

(e) He knew that he was responsible for stealing but he did not have any specific target.

(f) After he had received D1’s message “Don’t come”, he replied, “What happened? Speak quickly. Why don’t come?”

(g) He fled from the taxi at the sight of the police because he did not have any identification document.

(h) D4 and Ah Au met up later on and took on a taxi together. However, he fled again when the police intercepted their taxi for search. On that occasion, he was arrested by the police.

(i) The taxi was arranged by Ah Fat. The recycle bag, white towel, white shirt and water were brought by Ah Fat at his request.

(j) The contact and messages with Ah Fat had been deleted.

(k) The cash found on him was his.

D5 admitted in his cautioned video-recorded interview that:

(a) He knew D1 to D4 in mainland China since they were young.

(b) In March 2018, D2 to D4 and he had planned to steal from domestic houses and to sell the stolen properties through the snakeheads in Hong Kong and in China.

(c) D4 would liaise with the snakehead and then the proceeds would be split equally between them.

(d) Around mid-May 2018, D2 to D4 and he had entered Hong Kong by boat with intent to steal from residential units, and they stayed on hillside in Sai Kung and set up a tent there.

(e) The snakehead provided takeaway food to be collected by D4.

(f) They prepared crowbar and knife to prise open windows, gloves to prevent leaving behind fingerprints, masks to prevent camera capturing their faces and hats to block the light.

(g) Between mid-May and 21 June(July?) 2018, they looked out for residential units twice in two different places. They did not proceed to stealing as the occupants were present.

(h) On 18 July 2018, the snakehead brought D2 and D4 to Hang Hau to observe the environment and later the snakehead told them to steal from houses without occupant during night-time on 21 July 2018 as people would not be at home on a Saturday night.

(i) At around 7 pm on 21 July 2018, they took a taxi to Hang Hau. When they fled from the taxi at the sight of the police, he threw away a green backpack in the vicinity.

(j) He met up with D4 at 1 am on 22 July 2018 with the use of WeChat.

(k) The snakehead arranged for a person to come on a taxi. As D4 and D5 boarded the taxi, the person left the taxi and left behind water, towels and shirts for them; and

(l) The money seized from him was his.

According to the travel record of D1, he entered Hong Kong at 5.46 pm on 21 July 2017 through Lo Wu Control Point. As for D2 to D5, at all material times, they entered Hong Kong unlawfully.

In respect of Charges 1 to 3, at all material times, D4, having entered as a trespasser of buildings as particularized in Charges 1 to 3, stole therein properties as particularized in the respective charges.

In respect of Charge 4, at all material times, D1 conspired with D4 in Hong Kong and elsewhere to dishonestly receive certain stolen goods, knowing and believing the same to be stolen goods.

In respect of Charge 5, at all material times, D2 to D5 conspired together and with other persons unknown in Hong Kong and elsewhere to enter a building in Hong Kong as trespasser with intent to steal therein.

Antecedent

D1 was born in China and is now 25 years old. He had Form 2 education. He was unemployed and he lived in Maoming, Guangdong with his parents, elder brother and two elder sisters. He has a clear record in Hong Kong.

D2 was born in China and is now 31 years old. He was educated up to Form 3. He was unemployed and he lived in Maoming, Guangdong with his parents, younger sister and two younger brothers. He has a clear record in Hong Kong.

D3 was born in China and is now 42 years old. He was educated up to Form 3. He had worked as a decoration worker and he lived in Maoming, Guangdong with his mother, wife, brother, two sons and a daughter. He has a clear record in Hong Kong.

D4 was born in China and is now 30 years old. He was educated up to Form 3. He had worked as a factory worker and he lived in Maoming, Guangdong with his parents and wife. In May 2012, he was convicted of two counts of burglary and one of unlawful remaining and was sentenced to a total term of 3½ years’ imprisonment. In September 2012, he was convicted of one count of theft and was sentenced to 2½ years’ imprisonment.

D5 was born in China and is now 39 years old. He was educated up to Form 3. He had worked as a decoration worker and he lived in Maoming, Guangdong with his wife and three sons. He has a clear record in Hong Kong.

Mitigation

D1

Ms Cheng tells me in mitigation that D1 previously worked as plasterer and painter in construction sites. He was unemployed at the time of the offence. He has a clear record in Hong Kong and on the mainland.

Ms Cheng submits that D1, aged 24 at the time of the offence, was under the influence of D4 who was more senior in the same village. It was D4 who approached D1 and promised a reward of RMB800. D1 agreed to assist D4 as he was out of job at the time. D1 was arrested just about two hours after his arrival in Hong Kong. After his arrest, D1 was cooperative with the police throughout and he made full admissions to the police. He is remorseful for what he did as evidenced by his guilty plea tendered at the earliest opportunity.

Ms Cheng cites the case HKSAR v Xiao Wei, CACC 225/2003 and submits that the Court of Appeal considered a starting point of 18 months appropriate for the substantive offence of handling stolen goods obtained from burglary. Ms Cheng submits that D1 has been remanded in custody since his arrest and she asks me to pass a sentence that would enable D1’s immediate release.

D2

Ms Chan tells me in mitigation that D2 is aged 31, single and he was a farmer in his homeland, Maoming, earning about RMB200 per month. He has a clear record.

D1 is a cousin of D2 and D3 is his uncle. Both D4 and D5 are his friends whom he came to know on the mainland. D2 was the only child who stayed with his parents at home. He had to rely on his two brothers’ financial contribution as his earnings in farming was too little to support the family.

D2 committed the offence due to momentary greed. He agreed foolishly to come to Hong Kong to commit Charge 5 as arranged by D4. He came together with D3, D4 and another person illegally by boat only a few days before his arrest. He was told to act as a lookout.

Ms Chan submits that D2 is deeply remorseful and he made admission to the police upon arrest and pleaded guilty to the charge at the earliest opportunity. He promises not to commit any offence ever again.

Ms Chan submits that no loss or injury was sustained by anyone in respect of the conspiracy as the police had detected and stopped the burglary beforehand.

D3

Mr Wong for D3 submits in mitigation that the incidents relating to Charges 1 to 3 did not involve D3. Mr Wong tells me about the family background of D3. He is remorseful for what he had done in committing Charge 5 in Hong Kong. D3 regretted having agreed to his friend’s suggestion and joined the conspiracy. D3 hoped that the court can be lenient to him.

Mr Wong submits the proper starting point in a case of the commission of the substantive offence of burglary of domestic premises is 3 years’ imprisonment in the absence of aggravating or mitigating factors, and he cites R v Chan Yui Man, CACC 36/1988 in support.

Mr Wong reckons that aggravating features may include the fact that the offenders acted as part of a group and involved substantial planning. Mr Wong submits that the facts do not indicate that the conspiracy targeted at substantial premises or involved substantial properties. House-breaking tools like crowbar, torch, gloves and masks were to be used but there were no heavy instrument or equipment.

Mr Wong draws my attention to the fact that D3 and some of his co-accused came to Hong Kong from the mainland and they have been separately charged with the offence of unlawful remaining in Hong Kong. D3 is due to be sentenced in that case. Mr Wong also places before me a mitigation letter written by D3.

D4

Mr Sio tells me in mitigation that D4 is now 30 years old, a married man. He lived with his wife and parents in Maoming. He received education up to Form 1 on the mainland and he worked as a factory worker, earning RMB2,500 per month.

Mr Sio submits the strongest mitigating factor for D4 is that he pleaded guilty, thereby saving court’s time and resources. He submits that no violence was used by D4 when he committed the offence and no heavy house-breaking tool was used.

Mr Sio tells me D4 sold the stolen properties to a pawnshop for around 30,000 to $40,000. He had spent all the money and is not in a position to compensate the victims.

D4 is the sole breadwinner of the family. He committed the offences for quick money. He is remorseful and he wants to take care of his aging parents upon discharge from prison.

Mr Sio reckons that it is not appropriate to adopt the normal starting point of 36 months for each count of burglary. D4 asks for partly consecutive sentences be passed on the charges.

D5

Mr Cheung tells me in mitigation that D5 had only received primary education, not Form 3 as stated in his antecedent statement. He is the sole breadwinner of the family. Prior to D5’s coming to Hong Kong, he worked as a decoration worker with unstable income and was unable to earn enough for the family. D5 has a clear record in Hong Kong. For D5’s coming to Hong Kong from mainland on this occasion, he faces a count of unlawful remaining and his case will be dealt with at a magistrates’ court pending sentence in the present case.

Owing to poverty, D5 borrowed RMB30,000 from friends to grow potatoes and tried to make it a business to sell them. However, his farming business endeavour failed and he became in debt. To resolve his financial difficulty, D5 agreed to come to Hong Kong and committed Charge 5.

Mr Cheung reckons that the offence of conspiracy to commit burglary of domestic premises attracts the same starting point as the substantive offence subject to aggravating factors. Mr Cheung reckons that the fact that D5 was a cross-border offender could count as an aggravating factor as the court held in HKSAR v Xiao Wei [2003] 3 HKLRD 1063. He submits that in HKSAR v Lau Pang [2004] 3 HKLRD 565, the Court of Appeal held that the sentence for unlawful remaining should run consecutively to the burglary charge. He urges me to take this into account and not to enhance the sentence for this reason.

Mr Cheung also reckons that the fact that D5 was acting with three other defendants is an aggravating factor as the court so held in HKSAR v Cheng Wai Kai, CACC 338 & 339/2007. Mr Cheung asks me to take into consideration the following factors in D5’s favour:

(a) D5 was an opportunist as he was new and not a professional. He was not skilled and he was only following others to find target premises. The plan of the defendants was not successful.

(b) There was no use of threat or violence.

(c) There was no loss caused.

(d) D5 has a clear record; and

(e) D5 only faces one single charge and he pleaded guilty in remorse.

Mr Cheung submits that the two cases cited by the prosecution, that is HKSAR v Lau Bing CACC 138/2008 and HKSAR v Gao Chuanglu CACC 25/2013, can be distinguished from Charge 5 in that both Lau and Gao involved multiple counts with substantial loss caused to the victims.

For the above reasons, Mr Cheung asks me to pass a lenient sentence on D5.

Discussion

In sentencing the defendants, I have borne in mind the facts of the case, the background information of each defendant, all the matters urged upon me by counsel and the cases cited in mitigation by counsel and drawn to my attention by the prosecution, namely: (1) HKSAR v Lau Pang [2004] 3 HKLRD 565; (2) HKSAR v Cheng Wai Kai CACC 338 & 339/2007; (3) HKSAR v Xiao Wei [2003] 3 HKLRD; and (4) HKSAR v Gao Chuanglu CACC 25/2003.

Charge 1 against D4

Given the fact that D4 burgled a domestic premises, an initial starting point of 3 years’ imprisonment is appropriate. I find the following aggravating features present:

The fact that D4 committed Charge 1 with two other persons aggravated the seriousness of Charge 1. A higher starting point of 3½ years’ imprisonment is called for. D4 had been convicted of two counts of burglary and one of unlawful remaining in May 2012 and was sentenced to a total term of 3½ years’ imprisonment. In September 2012, he was convicted of one count of theft and was sentenced to 2½ years’ imprisonment with 20 months of which to run consecutively to the 3½ years imposed in May 2012. It is obvious that the terms of imprisonment passed on him failed to deter D4 from coming to Hong Kong to reoffend.

In my judgment, given the criminal record of D4, a higher starting point of 4 years’ imprisonment is called for.

D4 ransacked the premises and stole properties therein. The total value of the stolen properties was over $640,000. I note that most of the stolen properties were recovered save for the two watches that were worth $40,000. I am sure the ransacking of the premises had caused the victimized family considerable distress. In my judgment, the fact that D4 and his partners in crime ransacked the premises and the fact that D4 stole over $640,000 worth of stolen properties further aggravated the seriousness of Charge 1. The presence of these aggravating factors further bring the starting point up to 4½ years’ imprisonment.

D4 came to Hong Kong from Maoming on the mainland to commit Charge 1. The cross-border element further aggravates the seriousness of Charge 1. In my judgment, the final starting point for Charge 1 should be 5 years’ imprisonment.

D4 is given one-third reduction for his timely plea, which would bring his sentence down to 3 years and 4 months’ imprisonment, that is 40 months. Apart from the guilty plea, there is no other mitigating factor that can further reduce his sentence.

For the reasons given on Charge 1, I sentence D4 to 3 years and 4 months’ imprisonment.

Charge 2 against D4

Given the fact that D4 burgled a domestic premises, an initial starting point of 3 years’ imprisonment is appropriate. I find the following aggravating features present:

The fact that D4 committed Charge 2 with two other persons aggravated the seriousness of Charge 2. A higher starting point of 3½ years’ imprisonment is called for. I consider the criminal record of D4 an aggravating factor. For that reason, I take a higher starting point of 4 years’ imprisonment.

D4 ransacked the premises and stole properties therein. All the stolen properties were not recovered. I am sure the ransacking of the premises had caused the victimized family considerable distress, together with the loss of the stolen properties. In my judgment, the fact that D4 and his partners in crime ransacked the premises and the value of the stolen properties further aggravated the seriousness of Charge 2. The presence of these aggravating features further brings the starting point up to 4 years and 3 months’ imprisonment.

The cross-border element that I find present further aggravated the seriousness of Charge 2. In my judgment, the final starting point for Charge 2 should be 4 years and 9 months’ imprisonment.

D4 is given one-third reduction for his timely plea, which would bring his sentence down to 3 years and 2 months’ imprisonment, that is 38 months. Apart from the guilty plea, there is no other mitigating factor that can further reduce his sentence.

For the reasons given on Charge 2, I sentence D4 to 3 years and 2 months’ imprisonment.

Charge 3 against D4

Given the fact that D4 burgled a domestic premises, an initial starting point of 3 years’ imprisonment is appropriate. I find the following aggravating features present:

I consider the criminal record of D4 an aggravating factor. For that reason, I take a higher starting point of 3½ years’ imprisonment.

D4 ransacked the premises and stole properties therein. The total value of the stolen properties -- in fact, I made a mistake. Charge 2, in fact all the stolen properties have been recovered.

The presence of the aggravating feature that D4 ransacked the premises brings the starting point up to 4 years and 3 months’ imprisonment.

All the stolen properties for Charge 2 have been recovered.

I go back to Charge 3.

D4 ransacked the premises and stole properties therein. The total value of the stolen properties was $315,000. I am sure the ransacking of the premises and the loss of the stolen properties had caused the victim considerable distress. In my judgment, the fact that D4 ransacked the premises and the fact that D4 stole over $315,000 worth of properties further aggravated the seriousness of Charge 3. The presence of these aggravating factors brings the starting point up to 4 years’ imprisonment.

The cross-border element that I find present further aggravated the seriousness of Charge 3. In my judgment, the final starting point for Charge 3 should be 4½ years’ imprisonment.

D4 is given one-third reduction for his timely plea, which would bring his sentence down to 3 years’ imprisonment. Apart from the guilty plea, there is no other mitigating factor that can further reduce his sentence.

For the reasons given on Charge 3, I sentence D4 to 3 years’ imprisonment.

Charge 4 against D1

Ms Cheng in the course of mitigation submits that in Xiao Wei, the Court of Appeal considered a starting point of 18 months is appropriate for the substantive offence of handling stolen goods obtained from burglary. The relevant part of the judgment is at paragraph 12. Stuart-Moore VP said:

“Having considered these matters, we incline to the view that on the present facts a starting point of 3 years was manifestly excessive. In our judgment, a starting point of 18 months was appropriate.”

The Court of Appeal was not laying down a rule that 18 months is appropriate for the substantive offence of handling stolen goods obtained from burglary. The decision was made on the facts of Xiao Wei.

In sentencing D1, I take into consideration the examination of the aggravating factors that the English Court of Appeal made in R v Bernard Webbe and Ors [2002] 1 Cr App R(S) 22, a case referred to by the Court of Appeal in Xiao Wei. I note that in the present case:

(1) D1 was not only closely related to the persons who were to commit burglaries, that is D2 to D5, who were either his relatives or townsmen. He was close to them geographically when he was found and arrested by the police. He was in fact texting the other defendants, telling them not to come for fear of arrest by the police.

(2) D1 agreed to receive stolen properties of domestic burglaries and bring them back to the mainland.

(3) There was clearly a cross-border element in that the people who were to commit the burglaries and the one who was to receive the stolen properties, that is D1, all came from Maoming.

In my judgment, Charge 4 against D1 calls for a starting point of 27 months’ imprisonment. D1 is entitled to one-third reduction for his guilty plea and clear record. That would bring his sentence down to 18 months.

For the reasons given on Charge 4, I sentence D1 to 18 months’ imprisonment.

Charge 5 against D2 to D5

Charge 5 concerned a conspiracy reached between D2 to D5 and other persons unknown to commit domestic burglaries in Hong Kong. In my judgment, an initial starting point of 3 years’ imprisonment is appropriate for each of the four defendants. I consider the cross-border element an aggravating factor. A highest starting point of 3½ years’ imprisonment is called for. I consider the criminal record of D4 an aggravating factor against him. In my judgment, an enhancement of 6 months is appropriate.

With the upward adjustments, the final starting point for D2, D3 and D5 is 3½ years’ imprisonment. The final starting point for D4 is 4 years’ imprisonment. D2 to D5 are each entitled to one-third reduction for their guilty pleas.

For the reasons given on Charge 5, I sentence D2, D3 and D5 each to 2 years and 4 months’ imprisonment, that is, 28 months. I sentence D4 to 32 months’ imprisonment.

The Sentences

Charge 1 against D4, 3 years and 4 months’ imprisonment; Charge 2 against D4, 3 years and 2 months’ imprisonment; Charge 3 against D4, 3 years’ imprisonment; Charge 4 against D1, 18 months’ imprisonment; Charge 5 against D2, D3, D4 and D5: D2, 28 months’ imprisonment; D3, 28 months’ imprisonment; D4, 32 months’ imprisonment; and D5, 28 months’ imprisonment.

Totality for D4

In my judgment, a total term of 5½ years should adequately reflect the overall culpability of the four offences committed by D4. I order 8 months of the sentence for Charge 2 to run consecutively to the sentence of 3 years and 4 months’ imprisonment for Charge 1, making a subtotal of 4 years. I order that 1 year of the sentence for Charge 3 to run consecutively to the sentences for Charge 1 and 2, making a subtotal of 5 years. I order that 6 months of the sentence of Charge 5 to run consecutively to the sentences for Charges 1 to 3, making a total term of 5½ years’ imprisonment. D4 has to serve a total sentence of 5½ years’ imprisonment.