HKSAR v. Wei Xiuque

DCCC 324/2021

[2021] HKDC 1650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 324 OF 2021

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REASONS FOR SENTENCE

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1.The defendant faces a total of nine charges, eight of which are Burglary, Charges 1 to 8, and one is Remaining in Hong Kong without the authority of Director of Immigration after having landed unlawfully in Hong Kong, Charge 9.

2.As a result of plea bargaining, the defendant pleaded guilty to Charges 2, 3, 4, 5 and 8, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, and Charge 9, contrary to section 38(1)(b)  of the Immigration Ordinance, Cap 115.  Full details of the offences are set out in the facts admitted by the defendant.  The defendant was convicted of all these six charges accordingly.

3.Upon application by the prosecution, I ordered Charges 1, 6 and 7 be left in the court file and not to be proceeded against defendant without leave of court.

FACTS

Charge 2

4.Chan Sau Kam lived in a village house in Tai Po Tsai, Sai Kung.  On 22 June 2020 at around 10:05 pm, Ms Chan locked the iron grille of her house and went to bed.  On 23 June 2020, having heard that another house in Tai Po Tsai had been burgled in the small hours earlier that day, Ms Chan reviewed the CCTV installed in her house which showed on 23 June 2020 at 3:48 am, the defendant and an unknown male entered her house through the iron grille.  The defendant went upstairs and the unknown male stayed at the entrance area.  The unknown male took a pair of sneakers from the shoe rack and left at 3:59 am.  The defendant also left the house at 4:03 am.  Upon subsequent checking, Ms Chan noticed that a pair of sneakers valued at around HK$1,000 was missing from the shoe rack.

Charge 3

5.Chan Wing Wah lived in a village house at Block 29, Wah On Villa in San Tin, Yuen Long.  On 10 July 2020 at around 12:00 am, before going to bed, Mr Chan had locked the mosquito screen doors installed in the garden and the main entrance of his house.  At around 7:00 am, Mr Chan woke up and noticed that both mosquito screen doors were prized open.  Upon checking, Mr Chan discovered that cash of HK$13,000 and RMB700 was missing from a wallet that he placed in his bedroom.  CCTV installed nearby captured that at 3:25 am, the defendant and an unknown male wandered around near Block 26.  At 3:29 am, the defendant walked towards Block 29 and at 3:32 am, the unknown male followed the defendant. A print of the defendant’s left palm was found on a glass door at the entrance of the house.

Charge 4

6.Lui Kam Cho was the owner of a village house in Tsz Tong Tsuen, Tai Po.  Mr Lui had migrated to another country in 2019.  His relative, Mr Hui was responsible for cleaning and managing the house.  On 23 September 2020, Mr Hui’s wife entered the house and found an opened can of Coke on the table in the living room.  Feeling suspicious, she notified Mr Hui who then came to the house.  Mr Hui noticed signs of ransacking in two bedrooms.  The wardrobe of the master bedroom was prized open.  RMB10,000 was found missing from the wardrobe in the master bedroom and two camera lens valued at around HK$14,000 in total were missing from the guest bedroom.  A print of the defendant’s left middle finger was found on the drawer of the wardrobe.  Mr Hui last entered the house on 1 September 2020 and did not observe any sign of ransacking.

Charge 5

7.Hung Chuen Sung lived in a village house situated in Wai Tau Tsuen, Tai Po.  On 26 September 2020 at around 1:00 am, Mr Hung locked the doors and windows of the house.  Before going to bed, Mr Hung also checked that a watch and cash of HK$30,000 were placed on a table inside his bedroom.  On the same day at around 8:00 am, Mr Hung noticed that the main door of the house was prized open.  Upon checking, his watch valued at around HK$7,000 and cash of HK$30,000 were missing from his bedroom.  The cost of repairing the main door was HK$2,000.  CCTV of the next door neighbour captured that at 5:10 am, the defendant wandered outside Mr Hung’s house.  At 5:12 am, the defendant walked towards the entrance of Mr Hung’s house.  At 5:19 am, an unknown male walked away from Mr Hung’s house.  The defendant’s right ring fingerprint was found on the handle of Mr Hung’s bedroom.

Charges 8 and 9

8.Wong Sze Ki lived in “THE HOME RESORT” in Sha Kong Wai, Tin Shui Wai.  On 30 September 2020 at around 3:30 am, Ms Wong was awakened by footsteps and saw a person leaving her bedroom.  Ms Wong stayed in her bed and subsequently heard noises in her parents’ bedroom and in the living room.  Upon checking, Ms Wong confirmed that cash of HK$500 was missing from the storage room; cash of HK$4,000 was missing from her bedroom; cash of HK$5,600 was missing from her parents’ bedroom; and one mobile phone valued at around HK$13,100 was missing from the living room.  The defendant’s left middle fingerprint was found on the wall tile near the toilet window of the house.

9.On the same day at around 5:40 am, the police conducted observations in the vicinity of Ms Wong’s house and spotted the defendant boarding a taxi.  The police intercepted the taxi and conducted a search on the defendant.  Upon that search, cash of HK$3,187 was found in his left front trouser pocket and two torches were found in his right back trouser pocket.  The defendant was arrested.  Under caution, the defendant admitted that he stole the cash and that he illegally came to Hong Kong.  The travel records of the defendant revealed no movement record to Hong Kong between 1 May 2020 and 1 October 2020.

CAUTIONED INTERVIEWS

10.A total of 11 video-recorded cautioned interviews and 1 record of interview were conducted with the defendant. 

11.For Charge 2, the defendant said that an unknown male took him to a house on 23 June 2020.  The door of the house was not locked.  The two of them entered the house with intent to steal but he left without stealing anything. He was not sure if the unknown male had taken a pair of shoes.  He confirmed the relevant CCTV captured his images.

12.For Charge 3, the defendant said that an unknown male took him to a village house on 10 July 2020.  He opened the glass door of the house for the unknown male who then entered the house to steal.  He waited outside as a lookout.  The unknown male promised to pay him HK$3,000 as a reward.  He confirmed the relevant CCTV captured his images.

13.For Charge 4, the defendant said that he could not recall the exact premises that he had burgled.

14.For Charge 5, the defendant said that an unknown male took him to a village on 26 September 2020.  They planned to steal something and wandered around the village.  After a while, the unknown male entered a house for around 30 minutes.  The defendant stayed outside acting as a lookout.  He was not sure if the unknown male had stolen anything from the house.  He confirmed the relevant CCTV captured his images.

15.For Charge 8, the defendant said that an unknown male took him to a village on 30 September 2020.  As they both did not have money, the unknown male suggested that they go stealing.  At first, the unknown male entered the house concerned and he stayed outside to act as a lookout.  After the unknown male had come out from the house, the defendant climbed into it.  He checked the wallet on the table and the two bags on the sofa in the living room and found no money to steal.  He then left the house and asked the unknown if he had taken any money.  The unknown male handed over to him HK$2,000.  When he left the house, he saw the police and therefore he boarded the taxi.  Part of the money seized from him upon arrest was the money that the unknown male gave him.

16.For Charge 9, the defendant said that he entered Hong Kong from Shenzhen illegally by taking a fishing boat at least twice in the past.  He could not be sure of the exact dates when he landed Hong Kong.

CRIMINAL RECORD

17.The defendant has a clear record.

THE DEFENDANT’S BACKGROUND AND MITIGATION

18.Counsel submitted that the defendant aged 45, married with a 9-year-old son.  Both the defendant and his wife worked as a casual worker earning RMB2,500 and RMB1,500 per month respectively in mainland China.  The defendant’s father was diagnosed to be suffering from lung cancer in about 2019.  Since then, the family had to shoulder the medical expenses of about RMB30,000 per month.  The family had used up the savings and had to borrow money from friends and relatives.  The defendant had also owed a bank loan in the sum of RMB60,000.  In 2020, the family was in a difficult situation.  A friend of the defendant claimed that he could earn higher salary from employment in Hong Kong and the friend would arrange a job for him in Hong Kong.  In order to earn more money to support the family, the defendant paid to the friend a sum of around RMB600 who then arranged for him to come to Hong Kong.  However, upon arrival in Hong Kong, the friend had failed to arrange any such job.  In the circumstances, the defendant wrongfully committed the offences.

19.Counsel submitted that the defendant pleaded guilty to the charges.  He was co-operative to the police and made frank admissions during investigation. He was remorseful about his wrongdoing.  The defendant stressed that it was not his initial intention or plan to come to Hong Kong to commit the offences. 

20.Counsel further submitted that the defendant is very worried about his family, particularly his father.  He wished that he could return to mainland China as soon as possible so that he could take care of his family.  He promises that he would never commit offences again.  While the present offences involve multiple premises committed on different dates and sometimes with another person, the defendant is more inclined to being an opportunist.  The total value of the items and properties lost is HK$88,200 and RMB10,700.  It is not at the higher end of similar cases.  The defendant would like to pay compensation to the victims in the Burglary charges in the sum of HK$3,187 that was seized from him upon arrest.

CONSIDERATION

21.In sentencing, I have born in mind the facts of the case, the background information of the 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, HKSAR v Fan Kit Hung [2009] 6 HKC 312, The Queen v So Man King HCMA 408/1988, 香港特別行政區 訴 李國威DCCC 644/2019, 香港特別行政區 訴 梁元申DCCC 186/2018 and HKSAR v Cheng Chi Wai 608/2014, AG v Lui Kam Chi CAAR 1/1993 and R v Wong Man CAAR 372/1992.

Charges 2, 3, 4, 5 and 8 - Burglary offences

22.The offences were committed at domestic premises in different areas including Sai Kung, Yuen Long, Tin Shui Wai and Tai Po.  The property the defendant stole were as set out in Charges 2, 3, 4, 5 and 8.  The total value of the stolen property is HK$88,200 and RMB10,700.  A door was broken and the repair cost for that is HK$2,000.

23.It was held in Lui Kam Chi that three years’ imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender in circumstances unattended by particular aggravation or mitigation.

24.In the present case, entry was gained usually by opening doors, on most occasions by means of prizing.  Value of the stolen properties varies from HK$1,000 to HK$30,000.  I do not consider there are factors significant enough to distinguish between the cases to an extent that different starting points should be adopted for a particular charge.

25.I adopt a starting point of 3 years for each of the burglary charges.

26.The offences were committed in the middle of the night where occupiers were reasonably expected to be present.  In one case the female occupier of the premises was woken up by footsteps and saw the defendant leaving her bedroom and heard ransacking sound in other bedrooms. 

27.In HKSAR v Tong Fuk Sing [1999] 3 HKC 332, Stuart-Moore VP recognized it as an aggravating feature if the burglary was committed in the early hours or the morning at a time when the house was occupied and where anyone would clearly have expected it to be occupied.

28.The conduct of the defendant in each burglary case must have caused much distress to the families of the premises, more so in Charge 8.  I can only imagine the shock and horror of the finding a total stranger in one’s bedroom when one wakes up in the middle of the night.  In light of this aggravating feature, I enhance the starting point by 6 months to 3 years and 6 months.

29.The fact that the defendant committed Charges 2, 3, 5 and 8 with another unknown person aggravated the seriousness of these charges.  I further enhance the starting point by 3 months to 3 years and 9 months for these offences on this basis.

30.For these reasons, I adopt an ultimate starting point of 3 years and 9 months for each of Charges 2, 3, 5 and 8 and 3 years and 6 months for Charge 4.

31.The defendant pleaded guilty to these offences.  He is entitled to a full one-third discount for this reason.  I do not consider there is any other factor which justifies any further discount.  I recognize that the defendant made frank admissions to the police on all these charges during investigation, but his fingerprint or palm print was found in 4 out of the 5 offences and his images were captured by the relevant CCTV on 3 occasions.  It cannot be said that the crime has only come to light as a result of the admission of the defendant.  Economic pressure is not recognized as a mitigating factor.

32.I note that the defendant offers to pay compensation and that can be taken out from the money seized from him upon arrest.  Taking into account that the total sum lost by the victims is over HK$100,000, I find myself unable to give him any credit for his offer to pay compensation of HK$3,187.  Also, I decided not to order compensation without prejudice the victims’ right to civil claims.

33.Apart from the guilty pleas, there is no other mitigating factor that can further reduce the sentences.

34.Giving the defendant full credit for his pleas of guilty, he is sentenced to 30 months’ imprisonment for each of Charges 2, 3, 5 and 8 and 28 months’ imprisonment for Charge 4.

Charge 9 – Illegal remaining

35.In relation to Charge 9, the established tariff for sentencing a person who remained in Hong Kong having entered unlawfully is that of 15 months’ imprisonment on a plea of guilty (So Man King and Others).  This is the first time for the defendant to commit this offence.  I adopt a starting point so that a sentence of 15 months after plea would result. 

SENTENCES

36.So the sentences at present will be as follows:-

Charge 2: 30 months’ imprisonment;

Charge 3: 30 months’ imprisonment;

Charge 4: 28 months’ imprisonment;

Charge 5: 30 months’ imprisonment;

Charge 8: 30 months’ imprisonment; and

Charge 9: 15 months’ imprisonment.

TOTALITY

37.These offences were all separate and distinct offending.  The defendant committed the burglary offences over a period of about 3 months while being illegally remaining in Hong Kong.  Theoretically the sentences could all be imposed consecutively.  However, wholly consecutive sentence will be unduly long.

38.In regards to burglary offences, in HKSAR v Xie Guohong CACC 384/2003, the defendant pleaded guilty to four counts of burglary of non-domestic premises committed over a period of two months.  The Court of Appeal held that an overall starting point of 6 years was appropriate.

39.In HKSAR v Lau Bing CACC 138/2008, the appellant committed five domestic burglaries in four years, stealing properties of large value.  He pleaded guilty.  The Court of Appeal agreed that the totality of 5 years and 4 months’ imprisonment for these charges was not manifestly excessive.

40.In both of these cases, the sentences were arrived at on the basis of the usual starting point applicable to a burglary offence.

41.In the present case, aggravating features are identified.  In all the circumstances, as far as the burglary charges are concerned, having regard to totality, I am of the view that a notional overall starting point of 63 months is sufficient to reflect the culpability of the defendant.  The total sentence for the burglary charges, having taken into account full one-third discount for the defendant’s guilty pleas should therefore be 42 months’ imprisonment.  To achieve that, I order 3 months of the sentence of each of Charges 3, 4, 5 and 8 to run consecutively to Charge 2, the balance concurrent, making a subtotal of 42 months’ imprisonment for Charges 2, 3, 4, 5 and 8. 

42.Charge 9 increased the culpability of the defendant.  I am of the view that a proper overall sentence of 48 months would adequately reflect the overall criminality of all six offences.  To achieve that, I order 6 months of the sentence of Charge 9 to run consecutively to the aggregate of the sentences for the five Burglary charges, the balance concurrent, making a total of 48 months.

43.In summary, the defendant has to serve a total sentence of 48 months’ imprisonment.