HKSAR v. Jiang Lehu

DCCC 98/2020

[2020] HKDC 489

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 98 OF 2020

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REASONS FOR SENTENCE

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1.A retiree, Mr. Kong (64), confronted a burglar (the defendant- a visitor from the Mainland) breaking in his flat when returning home from outside in one afternoon. The burglar fled the scene but left behind some documents with his name and ID number written on it which led to his arrest by the police at the border checkpoint when he entered Hong Kong again in the following month.

2.The defendant pleaded guilty before me to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

3.The prosecution case is very simple and straightforward. In the afternoon of 27 October 2019, Mr. Kong popped out for a while only to find the defendant in the living room upon returning home, the defendant ran down the staircase to escape, but Mr. Kong chased him closely from behind and managed to intercept him at 2^nd floor.

4.The defendant told Mr. Kong that he did not take anything and then continued to run but dropped something on to the ground – a briefcase and a plastic bag. Having lost sight of the defendant, Mr. Kong came back to pick up the things - a briefcase and a plastic bag - dropped by the defendant.

5.It turned out that the plastic bag contained $6,000 cash in US currency which was later confirmed to be Mr. Kong’s stolen property whilst the briefcase had some documents and men’s clothes in it. The documents included a piece of medication instruction leaflet in Chinese with the defendant’s Chinses ID card number written on the back of it and two PRC train tickets with the defendant’s name printed on it.

6.Mr. Kong did not go to the police until the following day. Police found some prize marks on the metal gate and the wooden door of Mr. Kong’s flat and seized two screwdrivers left behind by the burglar in the flat as exhibits.

7.Apart from the cash which was the only stolen property recovered, Mr. Kong also lost some jewelleries such as gold necklaces, diamond rings and jade totalling approximately $300,000.

8.According to the immigration record, the defendant entered Hong Kong through Lo Wu Check Point at 10:06 a.m. on 27 October and left at 5:42 p.m. on the same day. He was arrested on his return to Hong Kong on 11 November 2019. The burglary occurred within the space of an hour between 3p.m. and 4p.m. in the afternoon. 

9.The defendant, a divorcee aged 45, has no prior convictions.  He has an 11-year-old son and a 76-year-old mother to support, and as a carpenter earning only 4,000 RMB a month, the defence counsel said, he has difficulties in making ends meet. It is for this reason that he committed the present offence.

10.The defence counsel identified two possible aggravating features in the case after citing the usual 3-year norm for a domestic burglary –

a) - the property stolen worth over $300,000 remains unrecovered;

b) - the defendant committed the offence on the day he arrived in Hong Kong.

11.Looking at his movement record in and out of Hong Kong on the day of offence, I have no doubt in my mind that the defendant came here solely for the purpose of committing crimes, which would enable the court to increase the sentence further.

12.As far as compensation is concerned, the defendant is clearly not in a position to fully compensate the victim’s losses, which are estimated to be around $300,000, but the court was informed by the prosecution that the defendant has HKD$3,359 and RMB$711, which are now kept in his personal property under the custody of the Correctional Services Department, on him at time of his arrest.

13.Though only a drop in the bucket, I think it would at least do some justice if the court were to make a compensation order pursuant to sections 73 and 106 of Criminal Procedure Ordinance in favour of the victim. I therefore order that the monies (HKD$3,359 and RMB$711) now in the defendant’s personal property be taken and paid to the victim, Mr. Kong, within 14 days from today.

14.In the case of Neoh Hooi Mei CACC 408/2013, in dealing with an order under s73, the Appellate Court has this to say:

“Finally, for completeness we state that we have considered whether or not the applicant was entitled to any discount in sentence to reflect the order of compensation made in favour of the bank. However, in the circumstances of this case, given that the court had the power to make that order in respect of monies found on the applicant at the time of her arrest, so that her consent was irrelevant, we are satisfied that the applicant was not entitled to any such discount.”

15.Having heard all the mitigation, I take 3 years as the starting point and add a further 3 months for the matter as set out in paragraph 11 above, reduce it by one-third to reflect his timely plea. As there being no reasons for further reduction in sentence, the defendant is therefore sentenced to 26 months’ imprisonment.