HKSAR v. Xu Mingliang

DCCC1136/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1136 OF 2009

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Reasons for Sentence

1.The defendant faces one charge of burglary and one charge of unlawful remaining in Hong Kong. He pleaded guilty and was convicted on both charges.

The facts:

2.At the material time, pw1 was the proprietor of a factory known as “Kin Hing Hong” located at Lot 119, Pak Sha Tsuen, Kum Um Road, Yuen Long, New Territories. The factory was covered by iron plates and was enclosed by hoardings of 2 meters in height. There was a gap of about half a meter between the cover and the hoardings of the factory. There was an office inside the factory. Normally the office door was left unlocked.

3.Since September 2009, pw1 found that food kept in the office had gone missing for unknown reasons. He reported the matter to the police and officers laid in ambush in the factory to investigate the matter.

4.At 00:50am on 14th September 2009, while pw2 and pw3 police officers were inside the factory, they saw the defendant climbing into the factory through the gap above the hoardings of the factory. The defendant then walked towards the office. He opened the office door and entered the office. Pw1 heard sounds of drawers opening coming out from the office. A minute later, when the defendant was coming out of the office, he was intercepted by pw1 and pw2.

5.The police found signs of ransacking in the office. Upon enquiries, the defendant admitted that he was an illegal entrant and he was looking for food in the factory. The defendant admitted to pw1 that he had no HKID card. Inside a bag carried by the defendant, pw1 found a small torch and a glove.

6.Upon being arrested for burglary and unlawful remaining, the defendant admitted again that he was looking for food in the factory.

7.Pw1 confirmed that he had suffered no loss in the incident.

8.During the video interview, the defendant repeated that he entered the factory to look for food. He further admitted that during the small hours on 8th September 2009, he boarded a speedboat in Shenzhen, China and then entered Hong Kong. After entering the territory, he had hidden himself in a farmhouse in Pak Sha Tsuen, Yuen Long. He claimed that he intended to find a job in Hong Kong.

Previous convictions

9.The defendant has 4 previous convictions. With one similar to charge 1 and one similar to charge 2, both being his latest convictions when he was sentenced to 1 year 8 months and 15 months’ imprisonment respectively.

Mitigation

10.The defendant got married in 1997, divorced in 2001. He has a daughter aged 13, they live in a village in Mui Chau, in Shantou, Guangdong. He lives with his father who is 82 and mother aged 78, who is suffering from a serious heart disease. The defendant was a farmer in China earning about RMB500 per month. That’s not enough to support his family, so he wanted to come to Hong Kong to look for a job to try to improve his financial situation. A letter was written by the defendant, wherein the defendant describes his family situation, that his parents are old and sick and that he has a 13 year old daughter still in school. He claims that he is the sole family financial support. He says he is remorseful and wish to be dealt with leniently, so that he can return to his family as soon as possible.

11.It is submitted by the defence that the factory was not a wholly enclosed premises and the defendant just sneaked in to the premises to look for food where he finds that the office door was left unlocked. The defence relies on the case of HKSAR v Cheung To Ming, CACC 406/2005, where an illegal immigrant entered a premises that was unlocked to look for food. It was held that he was a sneak thief and on that basis, the court held that the appellant was entitled to a lesser sentence. The lower starting point of 18 months’ imprisonment was adopted, instead of the usual 2 and a half years for non-domestic premises, reducing that starting point by 1/3 for the guilty plea, a sentence of 12 months’ imprisonment was substituted on appeal.

12.In relation to totality, defence solicitor asks the court for a concurrent sentence.

Sentence

13.The established tariff for sentencing in a burglary of a non-domestic premises is a starting point of 2 and a half years’ imprisonment. The established tariff for sentencing a person who remained in Hong Kong having entered unlawfully is that of 15 months’ imprisonment upon a guilty plea.

14.While I would tend to agree with the defendant’s legal representative that it was a “walk-in” burglary and that the defendant may be termed as a “sneak thief” as observed in the case of HKSAR v Cheung To Ming, supra, there is a very different aspect in our present case that would reduce the scope that this court has in reducing the sentence of the defendant, and that is the fact that he is a repeated offender.

15.The defendant was convicted in 2007 of offences similar to the present ones he faces today. He did not learn a lesson and chose to come to Hong Kong illegally again, with the intention to find a job to improve his life. Although I do sympathize with the plight that the defendant may face at home, to come to Hong Kong illegally with the intention to find a job and in the process committing burglary cannot be the right thing to do.

16.Taking into consideration that this may be a “walk-in” burglary, but also taking into consideration that this is his second conviction on both charges, I will adopt the following starting points.

In relation to charge 1

17.I will adopt a starting point of 2 and a half years' imprisonment, reducing that to 20 months' imprisonment upon his guilty plea. But for the fact that it was a “walk-in” burglary, I would have adopted a starting point of 3 years' imprisonment.

In relation to charge 2

18.I will adopt a starting point of 27 months' imprisonment. such that his sentence is reduced to that of 18 months' imprisonment upon his guilty plea. The starting point would be 27 months' imprisonment.

19.As in line with established legal principles, I will order that the sentences be served wholly consecutively. The defendant is sentenced to a total of 38 months' imprisonment.