HKSAR v. Feng Shanglin

DCCC 93/2022

[2022] HKDC 1242

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 93 OF 2022

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REASONS FOR SENTENCE

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1.Mr Feng pleaded guilty before me to two charges on a Charge Sheet, namely Charge 1 of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210; and Charge 2 of Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b)  of the Immigration Ordinance, Cap 115.

2.Particulars of Charge 1 are that he, on 27 April 2021, in Hong Kong, together with a person unknown, having entered as trespassers part of a building known as Flat F, 14 Floor, On Yue Building, No 130 Tsuen Wan Market Street, Tsuen Wan, New Territories, stole therein cash of $71,000 Hong Kong currency, cash of Renminbi in the total sum of about $1,000 Hong Kong currency, cash of foreign currencies in the total sum of about $7,200 Hong Kong currency, about 44 red packets containing cash of a total of about $1,200 Hong Kong currency, one bank passbook, one watch and one jewellery box containing one gold necklace.

3.Particulars of Charge 2 are that he, on the same day, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration.

Facts admitted by Mr Feng

Charge 1 Burglary

4.The burgled flat (“the Flat”)  was located in Flat F, 14/F of On Yue Building (“the Building”).  The Building had 23 floors.

5.Everything in the Flat was still fine on 27 April 2021 at around 1435 hours.

6.On the same day, at around 1415 hours, Mr Feng carrying a black rucksack was wandering outside the Building with an unknown man A, who was carrying a black rucksack with red stripe (“the Red Stripe Rucksack”).  They constantly looked around.

7.Soon, Mr Feng entered the Building alone when someone opened the main gate in order to exit.  He took the lift to an unknown floor.  A entered the Building 3 minutes later when someone else exited the Building.  A took the lift to the 18^th Floor.

8.About 20 minutes after Mr Feng went up the Building, he came down from an unknown floor to the G/F lobby by lift.  He then left the Building.

9.Six minutes later, at about 1443 hours, Mr Feng re-entered the Building.  He went up to the 15 Floor.

10.At about 1510 hours, A entered the lift on 16 Floor and descended.  Mr Feng joined him on the 13 Floor.  They left the Building together at about 1511 hours.

11.Mr Feng and A were carrying the black rucksack and the Red Stripe Rucksack respectively when they entered and left the Building each time.

12.An unknown man B joined the two men.  The trio then entered the Tsuen Wan MTR Station together.  They got off at Mongkok MTR Station and went into Sincere House in Argyle Street.  Mr Feng and A still had the two rucksacks with them respectively.  The trio entered the lift together.  One of them pressed the button for 16 Floor.  The three men left the lift together on an unknown floor.

13.At about 1533 hours, the police confirmed that the Flat had been burgled with the main door pried open.  The losses are specified in the particulars of the charge.

14.At about 1552 hours, police arrived at the 16 Floor of Sincere House. They saw Mr Feng (no longer with the black rucksack)  ringing the doorbell outside Room 1603 but no one answered the door.  Seconds later, Mr Feng left and walked towards the lift.  Police intercepted Mr Feng and found some personal items in his trousers’ pockets.  Mr Feng was soon arrested for burglary.

15.Mr Feng claimed he lived in Room 1208 of Sincere House.  He even had the passcode to the main door.  However, Room 1208 was found to be vacant.

16.On the other hand, Room 1603 was found to have been sub-divided into 8 units.  Unit 8 of Room 1603 was supposed to be unoccupied.  However, through the door gap of Unit 8, one could see the Red Stripe Rucksack being placed on the bed.  The wooden door to Unit 8 was locked from the inside with an anti-burglar chain.  The police forcibly entered Unit 8 and found the window open with one of the window grilles uninstalled and placed under a bed.

17.Upon search, personal properties including a black top, shoes, toothbrush, towels, two electric shavers and water bottles were found inside Unit 8 and were seized.  The Red Stripe Rucksack was also seized.  A CITI red packet with Chinese greetings and a drawing of two tangerines printed on it containing cash of HK$100 was found inside the Red Stripe Rucksack.  One of the victims of the burglary identified the CITI red packet as among the property stolen in the burglary.

18.DNA found on one of the electric shavers and a toothbrush seized from Unit 8 originated from Mr Feng.

19.Mr Feng now admits that he, together with A, trespassed into the Flat and stole therein the property enumerated in Charge 1.

Charge 2 Unlawful remaining

20.Under caution, Mr Feng admitted to have entered Hong Kong illegally via Sha Tau Kok by climbing mountains and elaborated as follows:-

(a)  He came to Hong Kong with a friend “Ah Fei” on 25 April 2021 and paid “Ah Fei” RMB3,000 as “leading fee”;

(b)  After entering Hong Kong, he and “Ah Fei” together with a Hunan man stayed in a guesthouse on 12 Floor of Sincere House; he had not lived on 16 Floor;

(c)  On the day of the incident, he was brought to On Yue Building by “Ah Fei” and the Hunan man; “Ah Fei” asked him to go to the staircase of the top floor and wait; He complied; they later left On Yue Building together; and;

(d)  One of the electric shavers, the black top and shoes that were found in Unit 8 belonged to him.

21.No immigration movement record of Mr Feng between 2011 and his date of arrest was found.

Criminal record

22.Mr Feng has a clear record in Hong Kong.

Antecedents

23.Mr Feng is aged 38 (36 at the time of the offences), a Mainland resident.  He was educated to F1 level in the Mainland and is married.  Since 2020, he has been unemployed.  His family members live in the Mainland.

Mitigation

24.Mr Jacky Lai of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Feng.  The following is a summary of the mitigation submissions.

25.Mr Feng is married and has two sons 15 and 13.  The family lives in a small rented apartment in the Mainland.  Mr Feng was the major breadwinner.

26.Since 2020, Mr Feng has been jobless and impoverished.  Occasionally, he was able to earn very little income from odd jobs.  Mr Feng has a clear record in Hong Kong and committed the offences for economic reasons.

27.Mr Feng is remorseful and promises not to re-offend.  He knows an immediate custodial sentence is inevitable.  The full 1/3 discount is asked for and so is a lenient sentence.

28.In a case of domestic burglary, the starting point for a first offender of full age should be 3 years’ imprisonment (see HKSAR v Ng Wai Hung [2003] 2 HKLRD 338, 342E).

29.The tariff sentence for unlawful remaining is 15 months’ imprisonment after a plea of guilty: R v So Man King [1989] 1 HKLR 142.

30.Mr Lai submitted that in principle the two charges’ sentences might run consecutively as they are separate charges; yet by the totality principle, the sentences might also run partially or wholly concurrently, under the discretion of the court.

31.Mr Lai acknowledged that Mr Feng came to Hong Kong to commit the burglary offence, albeit it was very wrong for Mr Feng to do so.

32.Mr Lai also acknowledged that Mr Feng committed the burglary offence in concert with A and B ie the Hunan man (though B was not mentioned in the charge).

33.Mr Feng wants to apologize to the victims of the burglary offence.

34.In December 2021, Mr Feng’s father passed away while Mr Feng was in remanded custody.  On the other hand, Mr Feng’s two young sons miss their father very much.

35.A lenient sentence is asked for.

Sentence

36.This is a relatively simple case of burglary committed by Mr Feng acting in concert with someone labelled as A.  What’s worse though, Mr Feng came to Hong Kong from the Mainland specifically to commit this offence.  Both are aggravating factors in their own right.

37.I adopt an initial starting point of 3 years in accordance with the authorities.  To that I shall add 6 months because of the dual aggravation.  Mr Feng pleaded guilty so he shall be entitled to a 1/3 discount.  That will bring the sentence down to 2 years and 4 months’ imprisonment.

38.For Charge 2, the usual sentence after plea is 15 months’ imprisonment. This is the sentence that I will impose for this charge.

39.There are no other mitigating factors that I can see which has the effect of lowering the individual sentences on the two charges.

40.The normal sentencing practice is to make the sentence on the unlawful remaining charge run consecutively to that on the substantive charge(s), subject only to a consideration of the totality principle.  I will consider the totality principle before I pass on Mr Feng the final sentence.

(Mr. Feng, please stand)

41.For Charge 1, the sentence is 2 years and 4 months’ imprisonment.

42.For Charge 2, the sentence is 15 months’ imprisonment.

43.On an application of the totality principle, I order that 11 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1. The aggregate sentence is therefore 3 years and 3 months’ imprisonment.