HKSAR v. Deng Tao

DCCC 544/2024

[2025] HKDC 395

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 544 OF 2024

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200, on his own plea and agreement to amended Summary of Facts.

Facts

2.The offence location was a Japanese restaurant.  The same was locked at around 11:00 pm on 29 November 2023 after close of business.  Owner of the restaurant was alerted by the CCTV system installed at the restaurant at around 3:10 am on 30 November 2023.  It was noted that the CCTV captured the defendant trying to prise open one of the rear entrances of the restaurant with a card at around 2:50 am on 30 November 2023.  Later, the defendant pushed the main entrance at around 3:03 am but to no avail.  The matter was reported to the police.  The main entrance was damaged.

3.The defendant was arrested at around 5:00 am on 30 November 2023.  Under caution, he said he touched the two doors of the restaurant but did not steal anything.  He also said that he came to Hong Kong for sightseeing, but admitted tampering with the doors of the restaurant at 2:50 am on 30 November 2023. 

4.Record showed the defendant entered Hong Kong at around 9:42 pm on 29 November 2023.

Criminal record

5.The defendant has a clear record in Hong Kong.

Mitigation

6.The defendant is single.  He has a child who lives with his parents in Hunan.  At the time of offence, he is a lawful visitor to Hong Kong.  He is employed in the logistics business in the mainland earning about ¥10,000 Renminbi per month.

7.Defence counsel conceded that the tariff sentence for non-domestic premises burglary is 30 months’ imprisonment in the absence of any aggravating or mitigating factors. 

8.It is submitted that as the attempt failed, nothing was stolen.  There was no planning or premeditation in the commission of the offence and the defendant acted alone.  It is said that the defendant was under the influence of alcohol at the time of the offence which caused a lapse in judgment. 

9.It is said also that by reason of the defendant’s guilty plea, he should be entitled to full one-third sentencing discount.  Defence counsel submitted that it is the first time the defendant was being put in custody, and therefore he asked this court to deal with the defendant leniently.

Discussion

10.Before sentencing, the court has carefully considered all that was said on behalf of the defendant. 

11.As conceded by defence counsel, it is well-established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating factors is that of 30 months’ imprisonment (HKSAR v Sim Ka Wing, CACC 450/2000). 

12.The defendant here acted alone.  He used a card in order to prise open one of the rear entrances.  As the entrances to the restaurant were locked at the time, the case is not to be considered an opportunistic burglary attempt. There was no loss to the restaurant, but the main entrance was somehow damaged.

13.It is noted that the defendant came to Hong Kong just about 5 hours before he started committing the offence.  This has led to the court’s irresistible conclusion that he came to Hong Kong for the purpose of commission of the offence, and not for sightseeing as he stated.  This amounts to an aggravating feature in sentencing (HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206).  The sentencing starting point is therefore enhanced by 4 months’ imprisonment.

14.Having considered the circumstances of the case and all that was said on behalf of the defendant, the most valid and useful mitigating factor is that of his timely plea, for which he is entitled to full one-third sentencing discount.  The defendant is therefore sentenced to 22 months and 20 days’ imprisonment.