HKSAR v. Tu Yunjun

DCCC 321/2020

[2020] HKDC 777

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 321 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary of the office of Ivy Wong & Co., certified public accountants, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant today.

3.In summary at around 1840 hours on 30 December last year Ms Wong, the sole proprietor of Ivy Wong & Co., which is located at Room 1311 Leighton Centre in Causeway Bay, was the last to leave the office.  Ms Wong secured the office door before leaving.

4.At around 1949 hours the same evening police officers who were conducting anti-burglary patrol near the Leighton Centre saw the defendant entering Leighton Centre carrying a bag. 

5.At around 2116 hours the police intercepted the defendant when he left Leighton Centre.  Upon search the police found on the defendant and in his bag a wallet; a cardholder; nine bank cards; three membership cards; a red box; a wrist chain and a necklace with pendant together with various tools: a portable jammer; a metal hook, an L-shaped metal strip; a magnet; two skeleton keys; a screwdriver; a torch; a metal spanner and a metal file cutter[2]. 

6.In a video recorded interview, the defendant stated, inter alia, that he used the magnet to open the door of an office in the Leighton Centre and stole a wallet and some cards from a drawer. 

7.Ms Wong confirmed that the wallet; the cardholder; the nine bank cards; the three membership cards; the red box; the wrist chain and the necklace with pendant belonged to her.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submission of Mr Bok, including that the defendant aged 43 has diabetes and needs to take medication twice a day.  The defendant was born in China and is married with two children and has elderly parents to look after, who are both of ill health[3].  

9.I have read the defendant’s mitigation letter in which he explains he came to Hong Kong to buy medicine for his sick parents and that while he was in Hong Kong his mother telephoned him to say his father was seriously ill and had been sent to hospital.  The defendant asks for leniency so he can go home earlier for family reunion. 

10.I take into account that the defendant was last before the court in Hong Kong in 1995 when he was sentenced to 3 years’ imprisonment for robbery and 15 months’ imprisonment concurrent for illegally remaining in Hong Kong[4]. 

Starting point

11.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

Aggravating factors

12.Mr Bok submits that there are no aggravating circumstances[5].  I disagree.  The defendant was a visitor from China travelling on a two-way permit[6].  Ms Ma informs the court that the defendant entered Hong Kong the same day as the burglary at about 1 p.m.  Mr Bok says that the defendant accepts that he entered Hong Kong the same day he committed the burglary. 

13.In HKSAR v Aguilar Garcia Milner Javier the Court of Appeal said that the fact that the applicant was a visitor to Hong Kong was a factor to which the judge was entitled to have regard, as being in aggravation of the commission of the offence and that where the offender entered Hong Kong to commit crime that was much more serious aggravation[7].

14.The defendant had also equipped himself with various tools suitable for burglary, including a magnet which he used to enter the office[8].   

15.When asked if there was anything he wished to say as to whether the court could draw the inference the defendant entered Hong Kong to commit burglary, Mr Bok replied that he had explained this to the defendant; repeated the content of the defendant’s letter and said that the defendant did not wish to explain where he obtained the tools from.

16.The defendant having committed the burglary within a few hours of entering Hong Kong and found in possession of tools, one of which he used to commit the burglary, I am satisfied the only inference to draw is that the defendant came to Hong Kong to commit burglary.

17.I enhance the starting point by 6 months to 3 years’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment.

[1] Cap 210.

[2] Ms Ma informed the court that the wallet; the cardholder; the nine bank cards and the three membership cards were found on the defendant and the other items and tools were found in his bag.

[3] See §§4.1-4.5 of the mitigation submission of the defendant.

[4] The criminal record shows that the conviction was under a different name and date of birth.  The defendant admitted his criminal record and that he had in 1995 entered Hong Kong using a different name and date of birth.  

[5] See §7.4 of the mitigation submission of the defendant.

[6] See §(a) of the antecedents.

[7] CACC 485/2012 at §19.

[8] See for example HKSAR v Yip Kam Fai CACC 286/2014 at §10.