HKSAR v. Zhang Zhen-jun

DCCC 1331/2011 &
DCCC 171/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 1331 OF 2011 & 171 OF 2012

____________________

BETWEEN

____________________

____________________

Reasons for Sentence

____________________

Introduction

1.The defendant is convicted on his own plea of the 1^st and 3^rd charges of burglary and the 2^nd and 4^th charges of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

Facts

2.The facts admitted by the defendant are as follows:

Charge 1

(i) PW1, his wife and two kids lived at a two-storey house situated at House No.1, S.D. 2, Lot 1966 (Part), Clear Water Bay Road, New Territories (“House 1”). Before PW1 and his family members went to sleep at about 1 am on 15 October 2011, PW1 had all the doors and windows of House 1 secured, except for the window in the washroom on the 1^st floor (the “Window”). A mosquito net was fixed on the Window.

(ii) When PW1 woke up at about 6 am on 15 October 2011, he found the Window widely opened and the mosquito net cut opened. He also found signs of ransacking near the TV cabinet placed on the ground floor. He made a report to the police. PW1 further checked House 1 and found that he had lost the following property:

(a) One black “Apple” iPod MP3 player (valued at HK$2,000);

(b)Two digital cameras and one camera case (one camera bearing the brand Fuji) (totally valued at HK$10,000);

(c) One pair of white sport shoes (valued at HK$500);

(d)One rucksack (valued at HK$500);

(e) PW1’s Hong Kong identity card and passport;

(f) One black laptop computer (valued at HK$6,000);

(g) Two external hard disks (totally valued at HK$900);

(h)Five memory cards (totally valued at HK$1,000); and

(i) Two Octopus cards (containing a total value of about HK$40).

(iii) In the course of checking House 1, PW1 also found the following items which did not belong to his family:

(a) One pair of green scissors (“Exhibit 1”);

(b)One brown jacket (“Exhibit 2”);

(c) One pair of black shoes (“Exhibit 3”).

The police also found one black rucksack (“Exhibit 4”), one Marlboro cigarette box (“Exhibit 5”) and one blue lighter (“Exhibit 6”) in the garden of House 1. The police also lifted five fingerprints from different parts of House 1.

Charge 3

(iv) PW5 lived at a three-storey house situated at No.49, 4^th Street, Section D, Fairview Park, Yuen Long, New Territories (“House 2”). Before PW5 went to sleep at about 1:30 am on 27 October 2011, she had locked all the doors and windows of House 2. Her handbag was placed next to her bed.

(v) PW5 was woken up by noise coming from the living room of House 2 at about 6 am on 27 October 2011. Upon checking, PW5 found that the kitchen door was opened and her handbag discarded in the garden outside the kitchen. Her property originally kept inside her handbag, namely cash of HK$3,300 and RMB¥1,000, a mobile phone (valued at HK$3,000), a watch (valued at HK$1,000) and an Octopus card were all stolen. A report was made to the police who lifted three fingerprints outside the kitchen window facing the garden.

Charges 2 and 4

(vi) At about 12 noon on 29 October 2011, the defendant was found hiding inside the aerofoil on the roof of a truck leaving Hong Kong for China at Lok Ma Chau Border Control Point. He was subsequently arrested by the police. Under caution, the defendant admitted that he had sneaked into Hong Kong from the Mainland.

(vii) The defendant was further cautioned by the police for burglary of House 1. Under caution, the defendant admitted that he had committed a burglary of a house at Fei Ngo Shan earlier in October after he had sneaked into Hong Kong. From that burglary, he had stolen an MP3 player, two digital cameras, a Hong Kong identity card and an Australian passport.

(viii) Subsequently, the defendant said under caution, inter alia, that:

(a) He had sneaked into Hong Kong on the morning of 14 October 2011. He then went to Fei Ngo Shan at about 6 pm on the same day;

(b)He had burgled House 1 – he arrived at House 1 at about 1 am on 15 October 2011, climbed up to the 1^st floor, cut open the mosquito net fixed on the Window and stole various items which were subsequently found by PW1 to have been lost. He fled from House 1 leaving his belongings Exhibits 1 to 6 behind after he had heard noise coming from the 1^st floor;

(c) After he had burgled House 1, he sneaked back to the Mainland on the same day, i.e. 15 October 2011;

(d)He had sold the “Apple” iPod MP3 player, 2 digital cameras, the rucksack and the black laptop computer stolen from House 1 to an unknown male in the Mainland for RMB¥6,000. He had thrown away PW1’s sport shoes, Hong Kong identity card and Australian passport;

(e) On 27 October 2011, he sneaked into Hong Kong from the Mainland again;

(f) He climbed into the garden of House 2, opened the kitchen window, broke into House 2, ransacked House 2 and stole HK$3,300, RMB¥1,000, a mobile phone, a watch and an Octopus card;

(g) He stayed overnight on a truck in Sheung Shui on 28 October 2011; and

(h)When he was trying to sneak back to the Mainland on 29 October 2011 by hiding himself in a truck, he was arrested by the police.

(ix) Two fingerprints lifted from House 1 and one fingerprint lifted from House 2 were subsequently found to be the defendant’s fingerprints.

The defendant’s previous conviction record and antecedents

3.The defendant has 16 previous criminal convictions in Hong Kong – 8 previous convictions of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, 5 previous convictions of burglary and 3 previous convictions of theft. His last convictions of two charges of burglary, one charge of theft and one charge of unlawful remaining were sentenced in October 2008. He was last discharged from prison on 27 June 2011.

4.He said he was born in the Mainland in August 1980. He is now 31 years old. He has received education up to primary one level.

Mitigation

5.Mr Lam submitted that the burglaries were not carefully planned ones, and that the defendant pleaded guilty to the charges thus showing his remorse. A letter from the defendant was also submitted to this court asking for leniency.

Sentence

6.The maximum sentence for the offence under section 38(1)(b) of the Immigration Ordinance is 3 years’ imprisonment. I am aware of the decision in R v So Man King [1989] 1 HKLR 142 but the defendant here has 8 previous convictions of unlawful remaining thus justifying a heavier sentence for deterrence. In this connection, for each of Charge 2 and Charge 4, I adopt a starting point of 33 months’ imprisonment. One-third discount is given to the defendant for his guilty plea thus reducing the sentence to 22 months’ imprisonment for each of Charge 2 and Charge 4.

7.In HKSAR v Lau Pang [2004] 3 HKLRD 565, it was held inter alia that (i) 3 years’ imprisonment was the proper starting point for a first offender of full age in a case of domestic burglary and (ii) the sentence for burglary should be consecutive to the sentence for the immigration offence. The defendant here is not a first offender of burglary cases. For each of Charge 1 and 3, I adopt a starting point of 3½ years’ imprisonment. One-third discount is given to the defendant for his guilty plea thus reducing the sentence to 28 months’ imprisonment for each of Charge 1 and Charge 3.

8.There is no other valid mitigating feature justifying further reduction in sentence.

9.On totality, having considered HKSAR v Lau Pang, HKSAR v Tin Fei Lung CACC 337/2003 and HKSAR v Chow Keung CACC478/2006, I order that:

(i) the sentences in Charges 1 and 2, i.e. 28 months and 22 months, to run consecutively;

(ii) 15 months’ imprisonment in Charge 4 to run consecutively with the 50 months’ imprisonment imposed in Charges 1 and 2; and

(iii) all other terms to run concurrently.

The total sentence is therefore 5 years and 5 months’ imprisonment being the aggregate of 28 months in Charge 1, 22 months in Charge 2 and 15 months in Charge 4.

Please refer to CACC160/2012 for the relevant appeal(s) to the Court of Appeal.