HKSAR v. Tian Zhibo

DCCC887/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 887 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.The facts of this case are very straightforward.

3.The defendant entered Hong Kong legally on 27 March 2007.

4.On the night of 29 March, the victims, who live on the 5th floor of Metro City, The Metropolis, Tseung Kwan O, were burgled by the defendant.  They had locked up their premises and gone to bed.

5.When they woke up in the morning, there was $350 cash missing, as well as a mobile phone.  One of the victims’ handbag had been moved and the defendant had helped himself to some soymilk from the fridge. The window of the toilet was opened, presumably how the defendant entered and left their home.

6.The police managed to lift the defendant’s DNA from the bottle or jar of soymilk.

7.However, at that time, the defendant was not arrested.  He had left Hong Kong legally three days later.

8.In 2010 January, because of three burglary charges, the defendant pleaded guilty in the District Court, the case no. being DC1345/2009.  Clearly, the burglary charges related to, again, domestic premises.

9.I am informed he pleaded guilty, to which he was then sentenced to 2 years’ imprisonment for each charge, which is in line with the normal sentence of a 3-year starting point for a domestic burglary.  The ultimate 2-year sentence reflects his plea.

10.The 2-year sentences for the three charges were made partly concurrent and partly consecutive, with a total sentence of 3 years and 3 months being imposed.

11.If he served the full sentence, he would be in remand till at least the end of 2012.  I have been told by the Correctional Services Department that his earliest release date would be 7 January 2012.

12.The defendant’s best mitigation in this case, as pointed out by counsel on his behalf, is his plea of guilty.

13.The defendant is a mature man of 33, single, but has a mother that relies on him.  He came to Hong Kong legally, but committed offences in 2007 and obviously in 2009.  He has written a letter expressing his remorse and wishes to be reunited with his mother.

14.When he committed this burglary in 2007, he had a clear record in Hong Kong.  He was arrested whilst in remand in September 2010 due to the DNA left at the scene in 2007 being on record.  The police traced this burglary to the defendant sometime after his arrest for the sentence he is presently serving.

15.The normal and customary sentence for a burglary of a domestic premise is 3 years’ starting point, where a defendant is of full age and there are no mitigating or aggravating factors that exist.

16.Having seen the facts and heard mitigation, I do not find any mitigating factors exist that would reduce this starting point.

17.On the other hand, on the same facts and mitigation, I do not find any aggravating factors that exist which will increase the starting point.

18.Luckily for the defendant, the occupants did not awake whilst he was invading their home.  The value of the items he managed to steal was not high, and he did not damage their property or violate their personal belongings.

19.Any domestic burglary is a terrible invasion of privacy, which is why there is a heavy term of imprisonment deemed appropriate.

20.I will take into account that if this offence had been dealt with at the same time as DC1345/2009, there would have been part-concurrent and part-consecutive sentences imposed to reflect the totality principle.

21.Defendant, please stand up.

22.Having taken a starting point of 3 years for this offence, you will be entitled to a discount of 1 year for your plea.

23.You are, for this offence, sentenced to 2 years’ imprisonment.

24.Of this 2 years, 9 months will be consecutive to the sentence you are presently serving in DC1345/2009; the balance will be served concurrently.

COURT: Do you understand?

A. Add 9 months to your sentence you are serving now.