HKSAR v. Ma Wenzhu

DCCC 83/2020

[2020] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 83 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me for an offence of Attempted Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinances, Cap 200.

2.The offence took place in a house consisting of 3 floors, a garden and a rooftop in Sai Kung.  It took place on 13 October 2019 at around 2100 hours when PW1 and her two daughters and their domestic helper were in their respective bedrooms on the 1^st and 2^nd floors.  PW1 suddenly heard loud and persisting banging sounds from the outside and therefore she turned on all the lights and went to have a check.  PW1 also reported the matter to the police.

3.The police officers arrived at around 2108 hours and they conducted a seeping near the house.  The defendant was found acting suspiciously at about 100 meters from the house.  Upon search, the defendant was found to have carried a rucksack containing, inter alia, one screwdriver (35cm) and one pair of labour gloves and a green handbag.  Inside the handbag, more items were found and they included 4 pairs of labour gloves, one pair of hydraulic pliers (41cm), one pair of pliers (21cm), one screwdriver (16cm), one jade bracelet, one mask and some clothes.

4.The defendant was then arrested for the offence of “Attempted Burglary”.

5.The inspection revealed that the 1^st Floor of the house was prized but no sign of ransacking was observed inside the house.  PW1 also confirmed that there was no loss of property.

6.Examinations by the Government Scientific Evidence Officer also confirmed that the prizing mark found matched with one of the screwdrivers (35cm).

7.The defendant was a two-way permit holder. Under caution, he stated, inter alia, that:-

(a) He came to Hong Kong on 13 October 2019 via Lo Wu Control Point;

(b) He had no fixed abode in Hong Kong; and

(c) He had no friends or relatives in Hong Kong.

8.The defendant admitted that at the material time, he attempted entering the house as a trespasser to steal.

Mitigation

9.The defendant was born in China and is now aged 35.  He had a clear criminal record.

10.Counsel for the defence has prepared a set of written submissions and I have considered those submissions in full.  In particular, the defendant claimed that he came to Hong Kong for sightseeing on the one hand; he was trying to look for gainful employment on the other.  He described himself to be a mere look-out helping his friend to burgle into the villa and his friend had not told him that the house in question was the target.  The attempt failed because the occupants were alarmed.  The defendant and his friend fled but at that juncture, they were stopped by the police.

11.The prosecution helpfully confirmed that the defendant was stopped and arrested with that other male and it was revealed that that male was charged and brought to the Magistrates’ Court but later on released upon legal advice.

12.The defendant appeared to be remorseful and feel ashamed. 

13.I accept that the chance of his re-offending is relatively low.

14.That said, burglary or attempted burglary are both serious offences.  There is no difference by virtue of the offence being an attempted one in the present case[i]. PW1 was alarmed otherwise it would be clear that the burglary would take place as intended.  The offence took place at night and inside the house were PW1, being a female, and her two daughters.  I am of the view that the usual starting point of 3-year[ii] for domestic burglary should still apply in this case.

15.The defendant is entitled to a one-third reduction for his guilty plea.  This would reduce the starting point to a term of 24-month imprisonment.  I shall order a further reduction of 3-month to reflect the role played by the defendant and his previous clear record.  I shall order a further reduction of 3-month for the defendant’s medical condition.  I do not see any further reduction justified.

16.The defendant is sentenced to 18 months’ imprisonment accordingly.