HKSAR v. Tsang Tse Kwan

DCCC1158/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1158 OF 2009

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Reasons for Sentence

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1. The Defendant pleads guilty to one count of burglary (Charge 1) and one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (Charge 2).

2. The victim was living at the 2nd floor of a 3-storey village house in Deep Bay Road, Tin Shui Wai, New Territories.  The victim’s family occupied a flat on the 2nd floor and the roof of the house.  There was an iron gate on the ground floor of his house and the victim had to go through another wooden door at the staircase inside the house before entering his flat.

3. In the afternoon at around 3 pm on 11 September 2009, the victim returned to his flat after work.  When he walked up the stairs to his flat, he met the Defendant at the staircase.  By that time, the Defendant was holding a knife of about 9 inches in length in his right hand and he pointed it at the victim.  At one point in time, the blade of the knife was less than 1 foot away from the victim.  The victim retreated and asked the Defendant to calm down.  At this juncture, the Defendant ran off the staircase and fled.  The victim pursued the Defendant from behind but lost sight of him after a while.  A report was then made to the police.

4. The victim returned to the house and found a bag containing some coins on the staircase, which was originally placed inside his flat.  There were also a shirt and a pair of jeans left on the staircase, both of which did not belong to the victims.  The victim found that the lock of the wooden door of his flat had been tampered with.

5. After the arrival of the police, he entered his flat with the police.  He found the flat was ransacked and the door of the balcony was wide open.  Upon checking, the victim found that the items listed in the charge sheet were missing.  The total value of the missing properties was less than $10,000.  The victim also found that a fruit knife was missing from the kitchen.

6. The police conducted a sweeping search in the vicinity afterwards to locate the Defendant.  At around 3.55 pm on the same day, the police located the Defendant in the Deep Bay Road and he was walking at a quick pace.  The police intercepted the Defendant and found a fruit knife at the back of his waist.  The stolen properties were found on the Defendant.  Upon being questioned, the Defendant told the police that the stolen properties were taken from a house nearby which he had climbed into.

7. The Defendant was arrested by the police.  At a subsequent video recorded interview conducted in the presence of a Mandarin interpreter, the Defendant admitted that:  (a) he was a resident of Mainland China and he swam to Hong Kong from Shenzhen at night time on 10 September 2009; (b) in the morning on 11 September 2009, he felt hungry and he therefore wandered around to look for food, when he passed by the house, he noticed the windows of the flat on the 2nd floor were open and he therefore climbed up to the balcony on the 2nd floor, opened the window and entered the flat; (c) he stayed in the flat for around 1 to 2 hours and he wanted to steal some valuable items, he took a T-shirt and a pair of jeans inside that room and changed his own clothings; (d) he took away some money and a knife, and he intended to use the knife to prise open the door; (e) he managed to prise open the wooden door of the flat but the iron gate on the ground floor was locked and he could not go out, when he returned to the second floor he found that the wooden door was locked, he therefore waited at the staircase and he was holding the knife in his hand all along; (f) when the victim returned to the flat and met him at the staircase, he told the victim not to move and he fled, and he kept the knife at the back of his waist; and (g) he admitted the stolen properties found on him were taken from the flat.

8. The victim later confirmed that the stolen properties recovered from the Defendant belonged to him and his wife.  At a subsequent identification parade held on 16 September 2009, the victim positively identified the Defendant as the one who pointed the knife at him on 11 September 2009.

9. The Defendant is aged 26.  He has previous similar convictions of burglary and remaining in Hong Kong without the authority of the Director of Immigration in 2003.  Formerly, he lived with his parents in Guizhou.  He then came to Shenzhen to work in a factory earning about RMB1,200 a month.

10. Burglary in a domestic premises is a serious offence which attracts a starting point of 3 years’ imprisonment.  The Defendant used a knife which caused alarm to the victim.  This is certainly an aggregating factor and so I adopt a higher starting point of 3½ years’ imprisonment for Charge 1.  Giving the Defendant one-third discount for his guilty plea, the sentence is reduced to 28 months’ imprisonment.

11. The term of sentence for Charge 2 is 15 months’ imprisonment after plea.  In principle, the two sentences should run consecutively.  Even taking into account the totality principle, I do not find the overall sentence excessive.  I therefore order the sentence in Charge 2 to run consecutive to the sentence in Charge 1, making a total of 43 months’ imprisonment.  This is the sentence I impose in the present case.