HKSAR v. Zhang Jianqing

DCCC 1198/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1198 OF 2008

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Before: Deputy District Judge Eddie Yip

Date:     21 Jan 2009 at 10:49am

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Reasons for Sentence

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The pleas

1.The defendant pleads guilty to 2 charges of burglary, the first one of a non-domestic unit and the second one of a domestic unit.  The Defendant disputes that he had another name other than “Zhang Jianqing”.  I do not think it will affect the plea and the sentence we have to deal with today.     

The first charge

2.The first charge is burglary.  In the small hours between 14 and 15 December 2007, someone prized open the wooden plank covering the ventilation window of a provision shop at No. 2, Tai Au Mun Road, Tseung Kwan O.  The drawers at the cashier’s counter were prized open and ransacked.  She found $4,000 cash missing.  One fingerprint was lifted from a plastic tray of the shop.  The plastic tray was for keeping coins. 

The second charge

3.The second charge is attempted burglary.  At 4 p.m. on 27 October 2008, a domestic helper at G/F, Block 9, Rise Park Villa, No. 38 Razor Hill road, Tseung Kwan O, saw the Defendant standing behind a glass door at the backyard of the house.  D said to her, “Open, open” in English.  She refused to do so.  The Defendant then left.  Feeling scared, she ran to the kitchen to look for her sister.  On the way, she saw another man standing outside a window to look at the interior of the house.  The Defendant and the other man climbed over the short wall of the house and fled.     

The arrest

4.Later, the police were summoned to the scene.  They stopped the Defendant and the other man at the hillside near Tseung Kwan O Upper Village.  When they revealed their police identity, the Defendant and the other man fled.  He was arrested.  The other man managed to escape.  A blue surgical mask was found from the front pocket of his trousers.   

The interviews under caution

5.Under caution at the scene, he claimed that he came to Hong Kong to look for jobs and help others repair the graves. 

6.When he was later interviewed for the first offence under caution, he claimed that he was in Hong Kong between 12 and 16 December 2007.  He had taken a bus to Sai Kung to join a friend for hiking.  Whilst hiking, he was arrested by the police.  He just went to Hong Kong to buy pills for his mother.

7.When he was later interviewed for the second offence under caution, he claimed that he had come to acquaint with a female at the shop for 2 years.  Occasionally he patronized the shop and assisted in putting things in order.  He did not know whether he had touched the plastic tray there.   

The fingerprint

8.The fingerprint lifted from the plastic tray in the shop matched with his fingerprint.   

The Defendant’s circumstances

9.The defendant is now 25 years old.  He was an orphan living in an orphanage until the age of 8 when adopted by an aged couple.   He lives with them.  The foster father is now 78 years old.  The foster mother is now 70 years old.  She has suffered chronic heart disease.  He has to raise money to buy medicine for her.  From 2005 to 2008, he worked in a garment factory.  His budget had all along been tight.  In August 2008, the factory closed down.  He was driven to the commission of crimes to cover the household and medicine expenses.    

10.He has 2 previous convictions, one for loitering and one for illegal remaining.

The principles of sentencing

Sentencing guidelines for burglary

11.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal regarded that the proper starting point for non-domestic premises would be 2 years and 6 months’ imprisonment. 

12.In HKSAR v Sim Ka-wing Cr App 450/2000, Keith JA, at para. 9,

explained the implications of the conventional starting point:

The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point.

Aggravating factors

13.In HKSAR v Cheng Chi-shing [2001] 2 HKLRD 75, Gall J, sitting as an additional justice in the Court of Appeal and delivering the judgment of the court, said that:

We note that in almost all the cases referred to in Mr Kwok's submission, the property taken was of small value and in most of them where two and a half years was adopted as a starting point, the burglar acted alone. The maximum penalty for burglary is a period of 14 years, and this offence was committed, as the judge observed, not as the act of an opportunist amateur. The burglars broke open not only the premises but also a safe, acting in concert and taking a considerable sum of money. Whilst we acknowledge that the normal sentence for non-domestic burglary after trial will often take a starting point of two and a half years, courts are not confined by the authorities to such an extent that, where the facts and the actions of the accused justify, they cannot take a higher starting point.  (my emphasis)

14.What may be relevant to the 1^st charge in our present case is the scenario where there was prizing opening of premises and the drawers.  What may be relevant to the 2^nd charge in our present case is the scenario where the defendant acted in concert.  In either scenario, a higher starting point should be taken. 

Attempted offence

15.The case of HKSAR v Lau Yun-leung [1999] 3 HKLRD 289 involved a defendant who pleaded guilty to attempted rape.  Stuart-Moore V-P, at 299, commented on the approach to sentence the attempted offender before the court:   

Mr Cross reminded us that the Judge, having taken this case as one of "basic" attempted rape without aggravating features, said that the starting point for the "basic attempted rape should be lower" than "the starting point for a basic completed rape". We endorse what was said in R v Cheung Ming Lim [1989] 1 HKLR 415 at p.417 that although this would normally be so, particularly "if it is desisted in at a comparatively early stage", an "attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence". We emphasise that there was in the present case no question of the respondent voluntarily desisting from the conduct he had embarked upon. It was only the intervention of police which brought the incident to an end.  (my emphasis)

16.What may be relevant to the 2^nd charge in our present case is the scenario that the defendant had voluntarily desisted from the conduct he had embarked upon.  In such scenario, a lower starting point should be taken. 

Totality

17.In R v McKechan [2004] EWCA Crim 212, it was said that totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”. 

18.In HKSAR v Zhen Futing Cr App 509/2003, Stock JA, at para. 18, expected the court to fix appropriate sentences for each offence, then consider the application of the totality principle, and, in particular, whether any adjustment needs to be made to any of the sentences to achieve the total effective sentence which is consistent with the application of the principle.    

The sentence I pass

19.I am aware of the usual starting point of 2 ½ years’ imprisonment for non-domestic premises.  For the 1^st charge, there is the aggravating factor of the prizing open of the ventilation window, apparently to gain entry into the shop, and the prizing opening of the cashier’s counter drawers.  I add an extra 3 months on top of the usual starting point.  From the starting point of 2 years and 9 months, I reduce it to 1 year and 10 months because of the plea of guilty.  The chronic health problem of his foster mother had been known to him before he committed the present offences.  It is not a mitigating factor.  In the absence of other mitigating factors, this is the sentence for the 1^st charge. 

20.I am aware of the usual starting point of 3 years’ imprisonment for domestic burglary.  For the 2^nd charge, on the one hand there is the aggravating factor of the Defendant acting in concert with another man.  On the other hand there is evidence of the Defendant and the man’s voluntarily desisting from the commission of the full offence.  After balancing these factors in mind, I take a starting point of 2 ½ years’ imprisonment.    I reduce it to 1 year and 8 months because of the plea of guilty.  There are no other mitigating factors.  This is the sentence for the 2^nd charge.

21.On totality, I order the sentence to be served as follows:

(1) 1^st charge: 1 year and 10 months;

(2) 2^nd charge: 8 months concurrent with 1^st charge whereas 1 year consecutive to 1^st charge.

The total length is 2 years and 10 months.