HKSAR v. Wang Wu and Another

DCCC 807/2019

[2020] HKDC 330

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 807 OF 2019

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Reasons for Sentence

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1.Both defendants have pleaded guilty to one count of burglary.

2.Particulars of the offence are that on 28 May 2019 both entered as trespassers into Room B, 23rd Floor, 208 Hollywood Road, Sheung Wan and stole nine items of jewellery.

3.The victim and the tenant of that room, Room B, 23rd Floor, left for work in the morning of 28 May 2019 having checked that the door and windows were closed.  Her jewellery was kept in the top drawer of her cabinet and has been estimated to be worth about HK$163,000.  The drawer was not locked.  When she left for work, the jewellery was in the drawer.  She came home at lunchtime but did not notice anything unusual at home.  She went out again at 2 pm.

4.Later that day, at about 7 pm, police officers saw both defendants acting suspiciously in the area of this building.  They observed both defendants enter into the building and leave again about 50 minutes later.  Their movements in the building are captured on CCTV footage. The police decided to follow the defendants after they left.  They followed them to Nathan Road on Kowloon side when they received instructions at about 10 pm to intercept both men to search them because the police had discovered by then that the victim’s home had been burgled.

5.They searched both men and on the 1st defendant they found all of the victim’s jewellery as well as gloves, a face mask, a flashlight, two screwdrivers and a master key.  The 2nd defendant was in possession of one pair of gloves and three face masks.  Under caution, both men denied committing a burglary and the 1st defendant said all the jewellery belonged to him.

6.When the victim returned home at 10 pm, she found police officers waiting for her outside her home.  They told her they suspected her home had been burgled.  She then found the windows were open when they had been closed and one window frame had evidence of some prize marks. All the jewellery originally placed inside the top drawer was missing.  She later identified the jewellery recovered from the 1st defendant as belonging to her.

7.Both defendants are not Hong Kong residents, they were holders of a two-way permit.  They entered Hong Kong at about 4 pm the day before the burglary.

1st Defendant: Mitigation

8.Everything that can be said on behalf of both men have been put forward in mitigation by counsel.  The 1st defendant is 29 years old, has a clear record in Hong Kong.  He is married with a young daughter and before his arrest he was working as a construction site worker at home in Mainland China.  He earned about 3,000 RMB each month.  I have seen a letter of mitigation and understand his family background.

2nd Defendant

9.The 2nd defendant is 33 years old, has a clear record and is married with three children.  Prior to his arrest, he was working as a driver earning about 10,000 RMB each month.  I have also seen his mitigation letter.

10.For both defendants, their best mitigation is their plea of guilty.  Counsel for both defendants identified the usual starting point for a burglary of a domestic premise to be 3 years’ imprisonment.  That is if there are no mitigating or aggravating factors. Counsel have stressed that the victim suffered no loss and all her jewellery was recovered.  Both defendants express remorse and ask for leniency.  The 2nd defendant did not plead guilty at the earliest opportunity but did change his plea, or change his mind, the day after his case was set down for trial.  I will exercise my discretion and treat the 2nd defendant as a man who did plead guilty at the earliest opportunity.  Both defendants will benefit from a full one-third discount.

11.The correct starting point for a burglary, a single burglary of domestic premises where there are no aggravating or mitigating factors is 3 years’ imprisonment.  I do not find any aggravating or mitigating factors exist.  Both men were adults at the time of this offence.  I have taken into account what has been said on their behalf and their backgrounds.

12.In all the circumstances, I am satisfied that the appropriate starting point for this burglary is 3 years’ imprisonment. Both defendants will be given full credit for their pleas, therefore I sentence both defendants to 2 years’ imprisonment.