HKSAR v. Lin Junqiu

DCCC 369 & 606/2013
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 369 & 606 OF 2013

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REASONS FOR SENTENCE

1.The defendant pleads guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.The defendant is a citizen of the Mainland who has travelled to Hong Kong as a visitor on a two-way permit on six occasions between July 2012 and January 2013.  On three occasions he has committed burglary. 

Charge 1

3.In the early hours of the 12 September 2012 the defendant together with two unknown persons burgled a grocery shop in Sham Shui Po.  The padlocks of the main and rear gates of the restaurant were damaged.  The photographs submitted to court show this was by cutting the padlocks.  The shop was ransacked and $16,000 cash, cigarettes to the value of $40,000 and 40 bottles of wine valued at $200,000 were stolen.

Charge 2

4.In the early hours of the 2 January 2013 the defendant burgled a restaurant in North Point.  The front and back door of the restaurant were prized open.  Again photographs show a lock had been cut.  A metal cash box was prized open and an unknown amount of cash stolen.  A safe and cashier drawer were also prized open and $65,000 stolen together with three bottles of wine valued at $1,500.

Charge 3

5.In the early hours of the 23 January 2013 the defendant together with two unknown persons burgled a medicine shop in Hung Hom.  The shop was ransacked and 2.2 kg of cordyceps valued at $1.2 million were stolen. 

6.In committing the burglary the security alarm of the restaurant was activated. This alerted patrolling police officers who were able to arrest the defendant. The cordyceps were recovered from a taxi the defendant and other suspects had boarded after committing the burglary.

7.There are no photographs of the medicine shop showing how the burglars gained entry, although I note in the exhibit list bolt cutters were seized, which I am told were found in a rucksack in the front seat of the taxi where one of the other burglars sat.

8.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Tse together with the letters submitted by the defendant.  The defendant is married and has a young family of four children to look after.  Driven by economic needs the defendant took part in the three burglaries.  I take into account the defendant has no previous convictions in Hong Kong although this carries little weight considering altogether the defendant has spent less than one month in Hong Kong and is before the court for three burglaries.

9.Mr Tse submits that the defendant, as he told the police, acted only as a delivery worker.  For the reasons outlined in court I have no hesitation in rejecting this submission.  Even if on the first occasion in September last year the defendant thought he was going as a delivery worker he would have realised as soon as he arrived at the premises he was in fact to take part in a burglary. Thereafter the defendant fully participated in the burglary having been captured on CCTV ransacking the premises.

10.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  

11.There are however aggravating features in the burglaries: 

(1) The burglaries were committed with others. Although for charge 2 the defendant is charged as committing the burglary alone Mr Tse informs the court his instructions are the defendant acted together with others;

(2) valuable property was targeted, in particular charge 3 where the property stolen is valued at over $1 million; the property subject of charges 1 & 2 to the total value of $322,500 remains unrecovered; and

(3) the burglaries were committed on three separate visits to Hong Kong. Visitors who come to Hong Kong thinking they can steal to support their livelihood must be deterred (see for example HKSAR v Aguilar Garcia Milner Javier CACC485/2012).

12.In these circumstances I am satisfied the proper starting point on each charge is to be increased by 9 months to 3 years and 3 months imprisonment.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 2 years and 2 months imprisonment.

Totality

13.In Attorney General v Lui Kam Chi the court said that where the offences were committed in different premises against different victims on different dates consecutive sentences should be imposed.  The burglaries were committed on three different dates against three different victims in Sham Shui Po, North Point and Hung Hom.  The burglaries were clearly planned and not opportunistic burglaries as can be seen by the way entry was gained to the shop and the restaurant.  

14.In HKSAR v Xie Guohong CACC 384/2003 the defendant, a two-way permit holder, pleaded guilty to four burglaries.  Taking into account the four offences were committed within a period of two months; the value of the stolen properties, which were not recovered, amounted to over $470,000; and that the applicant did not have any previous convictions for burglary or dishonesty, the Court of Appeal said an overall starting point of 6 years was appropriate.

15.Taking into account all the circumstances of the three burglaries I am satisfied that a total sentence to be served by the defendant of 3 years and 10 months imprisonment is appropriate, which I am satisfied properly reflects the defendant’s criminality on the three charges.

Sentence

16.The defendant is convicted and sentenced as follows:

CHARGE 1 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

CHARGE 2 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

10 MONTHS CONSECUTIVE AND 16 MONTHS CONCURRENT TO CHARGE 1;

CHARGE 3 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

10 MONTHS CONSECUTIVE AND 16 MONTHS CONCURRENT TO CHARGES 1 & 2;

TOTAL SENTENCE TO BE SERVED IS 3 YEARS AND 10 MONTHS IMPRISONMENT