由此
A
-1- A
B DCCC 1331/2011 & B
DCCC 171/2012
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NOS 1331 OF 2011 & 171 OF 2012
F ____________________ F
BETWEEN
G G
HKSAR
v
H ZHANG Zhen-jun H
____________________
I I
Before: Deputy District Judge KH Cheang
J Date: 19 April 2012 J
Present: Ms Lisa Go, Public Prosecutor of the Department
K K
of Justice, for HKSAR
L Mr Lam Kwok Man, of Messrs Yip & Co, L
instructed by the Legal Aid Department, for the
M M
defendant
N Offences: (1) & (3) Burglary 入屋犯法 N
(2) & (4) Remaining in Hong Kong without
O O
the authority of the Director of Immigration after
having landed unlawfully in Hong Kong 在香港
P
P
非法入境後未得入境事務處處長授權而留在香
港
Q Q
____________________
Reasons for Sentence R
R
____________________
S S
Introduction
T 1. The defendant is convicted on his own plea of the 1st and 3rd charges T
of burglary and the 2nd and 4th charges of remaining in Hong Kong without
U U
V V
由此
A
-2- A
B the authority of the Director of Immigration after having landed unlawfully B
in Hong Kong.
C C
D Facts D
2. The facts admitted by the defendant are as follows:
E E
F Charge 1 F
(i) PW1, his wife and two kids lived at a two-storey house
G G
situated at House No.1, S.D. 2, Lot 1966 (Part), Clear Water
H Bay Road, New Territories (“House 1”). Before PW1 and his H
family members went to sleep at about 1 am on 15 October
I I
2011, PW1 had all the doors and windows of House 1 secured,
J
J except for the window in the washroom on the 1 st floor (the
“Window”). A mosquito net was fixed on the Window. K
K
L (ii) When PW1 woke up at about 6 am on 15 October 2011, he L
found the Window widely opened and the mosquito net cut
M M
opened. He also found signs of ransacking near the TV cabinet
N placed on the ground floor. He made a report to the police. N
PW1 further checked House 1 and found that he had lost the
O O
following property:
P P
(a) One black “Apple” iPod MP3 player (valued at HK$2,000);
Q Q
(b) Two digital cameras and one camera case (one camera
bearing the brand Fuji) (totally valued at HK$10,000); R
R
(c) One pair of white sport shoes (valued at HK$500);
S S
(d) One rucksack (valued at HK$500);
(e) PW1’s Hong Kong identity card and passport; T
T
(f) One black laptop computer (valued at HK$6,000);
U U
V V
由此
A
-3- A
B (g) Two external hard disks (totally valued at HK$900); B
(h) Five memory cards (totally valued at HK$1,000); and
C C
(i) Two Octopus cards (containing a total value of about
D HK$40). D
E E
(iii) In the course of checking House 1, PW1 also found the
following items which did not belong to his family: F
F
G G
(a) One pair of green scissors (“Exhibit 1”);
H
(b) One brown jacket (“Exhibit 2”); H
(c) One pair of black shoes (“Exhibit 3”).
I I
J The police also found one black rucksack (“Exhibit 4”), one J
Marlboro cigarette box (“Exhibit 5”) and one blue lighter
K K
(“Exhibit 6”) in the garden of House 1. The police also lifted
L five fingerprints from different parts of House 1. L
M M
Charge 3
N (iv) PW5 lived at a three-storey house situated at No.49, 4th Street, N
Section D, Fairview Park, Yuen Long, New Territories
O O
(“House 2”). Before PW5 went to sleep at about 1:30 am on
P 27 October 2011, she had locked all the doors and windows of P
House 2. Her handbag was placed next to her bed.
Q Q
R (v) PW5 was woken up by noise coming from the living room of R
House 2 at about 6 am on 27 October 2011. Upon checking,
S S
PW5 found that the kitchen door was opened and her handbag
T discarded in the garden outside the kitchen. Her property T
originally kept inside her handbag, namely cash of HK$3,300
U U
V V
由此
A
-4- A
B and RMB¥1,000, a mobile phone (valued at HK$3,000), a B
watch (valued at HK$1,000) and an Octopus card were all
C C
stolen. A report was made to the police who lifted three
D fingerprints outside the kitchen window facing the garden. D
E E
Charges 2 and 4
(vi) At about 12 noon on 29 October 2011, the defendant was
F F
found hiding inside the aerofoil on the roof of a truck leaving
G Hong Kong for China at Lok Ma Chau Border Control Point. G
He was subsequently arrested by the police. Under caution, the
H H
defendant admitted that he had sneaked into Hong Kong from
I the Mainland. I
J J
(vii) The defendant was further cautioned by the police for burglary
K of House 1. Under caution, the defendant admitted that he had K
committed a burglary of a house at Fei Ngo Shan earlier in
L L
October after he had sneaked into Hong Kong. From that
M burglary, he had stolen an MP3 player, two digital cameras, a M
Hong Kong identity card and an Australian passport.
N N
O
(viii) Subsequently, the defendant said under caution, inter alia, that: O
P (a) He had sneaked into Hong Kong on the morning of 14 P
October 2011. He then went to Fei Ngo Shan at about 6 pm
Q Q
on the same day;
R (b) He had burgled House 1 – he arrived at House 1 at about 1 R
am on 15 October 2011, climbed up to the 1st floor, cut
S S
open the mosquito net fixed on the Window and stole
T various items which were subsequently found by PW1 to T
have been lost. He fled from House 1 leaving his
U U
V V
由此
A
-5- A
B belongings Exhibits 1 to 6 behind after he had heard noise B
coming from the 1st floor;
C C
(c) After he had burgled House 1, he sneaked back to the
D Mainland on the same day, i.e. 15 October 2011; D
(d) He had sold the “Apple” iPod MP3 player, 2 digital
E E
cameras, the rucksack and the black laptop computer stolen
F from House 1 to an unknown male in the Mainland for F
RMB¥6,000. He had thrown away PW1’s sport shoes,
G G
Hong Kong identity card and Australian passport;
H (e) On 27 October 2011, he sneaked into Hong Kong from the H
Mainland again;
I I
(f) He climbed into the garden of House 2, opened the kitchen
J J
window, broke into House 2, ransacked House 2 and stole
HK$3,300, RMB¥1,000, a mobile phone, a watch and an K
K
Octopus card;
L L
(g) He stayed overnight on a truck in Sheung Shui on 28
October 2011; and M
M
(h) When he was trying to sneak back to the Mainland on 29
N N
October 2011 by hiding himself in a truck, he was arrested
O
by the police. O
P P
(ix) Two fingerprints lifted from House 1 and one fingerprint lifted
Q from House 2 were subsequently found to be the defendant’s Q
fingerprints.
R R
S The defendant’s previous conviction record and antecedents S
3. The defendant has 16 previous criminal convictions in Hong Kong –
T T
8 previous convictions of remaining in Hong Kong without the authority of
U U
V V
由此
A
-6- A
B the Director of Immigration after having landed unlawfully in Hong Kong, B
5 previous convictions of burglary and 3 previous convictions of theft. His
C C
last convictions of two charges of burglary, one charge of theft and one
D charge of unlawful remaining were sentenced in October 2008. He was last D
discharged from prison on 27 June 2011.
E E
F 4. He said he was born in the Mainland in August 1980. He is now 31 F
years old. He has received education up to primary one level.
G G
H Mitigation H
5. Mr Lam submitted that the burglaries were not carefully planned
I I
ones, and that the defendant pleaded guilty to the charges thus showing his
J J
remorse. A letter from the defendant was also submitted to this court asking
for leniency. K
K
L L
Sentence
6. The maximum sentence for the offence under section 38(1)(b) of the M
M
Immigration Ordinance is 3 years’ imprisonment. I am aware of the
N N
decision in R v So Man King [1989] 1 HKLR 142 but the defendant here
O
has 8 previous convictions of unlawful remaining thus justifying a heavier O
sentence for deterrence. In this connection, for each of Charge 2 and
P P
Charge 4, I adopt a starting point of 33 months’ imprisonment. One-third
Q discount is given to the defendant for his guilty plea thus reducing the Q
sentence to 22 months’ imprisonment for each of Charge 2 and Charge 4.
R R
S 7. In HKSAR v Lau Pang [2004] 3 HKLRD 565, it was held inter alia S
that (i) 3 years’ imprisonment was the proper starting point for a first
T T
offender of full age in a case of domestic burglary and (ii) the sentence for
U U
V V
由此
A
-7- A
B burglary should be consecutive to the sentence for the immigration offence. B
The defendant here is not a first offender of burglary cases. For each of
C C
Charge 1 and 3, I adopt a starting point of 3½ years’ imprisonment. One-
D third discount is given to the defendant for his guilty plea thus reducing the D
sentence to 28 months’ imprisonment for each of Charge 1 and Charge 3.
E E
8. There is no other valid mitigating feature justifying further reduction F
F
in sentence.
G G
9. On totality, having considered HKSAR v Lau Pang, HKSAR v Tin Fei
H H
Lung CACC 337/2003 and HKSAR v Chow Keung CACC478/2006, I order
I that: I
J J
(i) the sentences in Charges 1 and 2, i.e. 28 months and 22
months, to run consecutively; K
K
(ii) 15 months’ imprisonment in Charge 4 to run consecutively
L L
with the 50 months’ imprisonment imposed in Charges 1 and 2;
and M
M
(iii) all other terms to run concurrently.
N N
O
The total sentence is therefore 5 years and 5 months’ imprisonment being O
the aggregate of 28 months in Charge 1, 22 months in Charge 2 and 15
P P
months in Charge 4.
Q Q
R KH Cheang R
Deputy District Judge
S S
T T
U U
V V
由此
A
-1- A
B DCCC 1331/2011 & B
DCCC 171/2012
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NOS 1331 OF 2011 & 171 OF 2012
F ____________________ F
BETWEEN
G G
HKSAR
v
H ZHANG Zhen-jun H
____________________
I I
Before: Deputy District Judge KH Cheang
J Date: 19 April 2012 J
Present: Ms Lisa Go, Public Prosecutor of the Department
K K
of Justice, for HKSAR
L Mr Lam Kwok Man, of Messrs Yip & Co, L
instructed by the Legal Aid Department, for the
M M
defendant
N Offences: (1) & (3) Burglary 入屋犯法 N
(2) & (4) Remaining in Hong Kong without
O O
the authority of the Director of Immigration after
having landed unlawfully in Hong Kong 在香港
P
P
非法入境後未得入境事務處處長授權而留在香
港
Q Q
____________________
Reasons for Sentence R
R
____________________
S S
Introduction
T 1. The defendant is convicted on his own plea of the 1st and 3rd charges T
of burglary and the 2nd and 4th charges of remaining in Hong Kong without
U U
V V
由此
A
-2- A
B the authority of the Director of Immigration after having landed unlawfully B
in Hong Kong.
C C
D Facts D
2. The facts admitted by the defendant are as follows:
E E
F Charge 1 F
(i) PW1, his wife and two kids lived at a two-storey house
G G
situated at House No.1, S.D. 2, Lot 1966 (Part), Clear Water
H Bay Road, New Territories (“House 1”). Before PW1 and his H
family members went to sleep at about 1 am on 15 October
I I
2011, PW1 had all the doors and windows of House 1 secured,
J
J except for the window in the washroom on the 1 st floor (the
“Window”). A mosquito net was fixed on the Window. K
K
L (ii) When PW1 woke up at about 6 am on 15 October 2011, he L
found the Window widely opened and the mosquito net cut
M M
opened. He also found signs of ransacking near the TV cabinet
N placed on the ground floor. He made a report to the police. N
PW1 further checked House 1 and found that he had lost the
O O
following property:
P P
(a) One black “Apple” iPod MP3 player (valued at HK$2,000);
Q Q
(b) Two digital cameras and one camera case (one camera
bearing the brand Fuji) (totally valued at HK$10,000); R
R
(c) One pair of white sport shoes (valued at HK$500);
S S
(d) One rucksack (valued at HK$500);
(e) PW1’s Hong Kong identity card and passport; T
T
(f) One black laptop computer (valued at HK$6,000);
U U
V V
由此
A
-3- A
B (g) Two external hard disks (totally valued at HK$900); B
(h) Five memory cards (totally valued at HK$1,000); and
C C
(i) Two Octopus cards (containing a total value of about
D HK$40). D
E E
(iii) In the course of checking House 1, PW1 also found the
following items which did not belong to his family: F
F
G G
(a) One pair of green scissors (“Exhibit 1”);
H
(b) One brown jacket (“Exhibit 2”); H
(c) One pair of black shoes (“Exhibit 3”).
I I
J The police also found one black rucksack (“Exhibit 4”), one J
Marlboro cigarette box (“Exhibit 5”) and one blue lighter
K K
(“Exhibit 6”) in the garden of House 1. The police also lifted
L five fingerprints from different parts of House 1. L
M M
Charge 3
N (iv) PW5 lived at a three-storey house situated at No.49, 4th Street, N
Section D, Fairview Park, Yuen Long, New Territories
O O
(“House 2”). Before PW5 went to sleep at about 1:30 am on
P 27 October 2011, she had locked all the doors and windows of P
House 2. Her handbag was placed next to her bed.
Q Q
R (v) PW5 was woken up by noise coming from the living room of R
House 2 at about 6 am on 27 October 2011. Upon checking,
S S
PW5 found that the kitchen door was opened and her handbag
T discarded in the garden outside the kitchen. Her property T
originally kept inside her handbag, namely cash of HK$3,300
U U
V V
由此
A
-4- A
B and RMB¥1,000, a mobile phone (valued at HK$3,000), a B
watch (valued at HK$1,000) and an Octopus card were all
C C
stolen. A report was made to the police who lifted three
D fingerprints outside the kitchen window facing the garden. D
E E
Charges 2 and 4
(vi) At about 12 noon on 29 October 2011, the defendant was
F F
found hiding inside the aerofoil on the roof of a truck leaving
G Hong Kong for China at Lok Ma Chau Border Control Point. G
He was subsequently arrested by the police. Under caution, the
H H
defendant admitted that he had sneaked into Hong Kong from
I the Mainland. I
J J
(vii) The defendant was further cautioned by the police for burglary
K of House 1. Under caution, the defendant admitted that he had K
committed a burglary of a house at Fei Ngo Shan earlier in
L L
October after he had sneaked into Hong Kong. From that
M burglary, he had stolen an MP3 player, two digital cameras, a M
Hong Kong identity card and an Australian passport.
N N
O
(viii) Subsequently, the defendant said under caution, inter alia, that: O
P (a) He had sneaked into Hong Kong on the morning of 14 P
October 2011. He then went to Fei Ngo Shan at about 6 pm
Q Q
on the same day;
R (b) He had burgled House 1 – he arrived at House 1 at about 1 R
am on 15 October 2011, climbed up to the 1st floor, cut
S S
open the mosquito net fixed on the Window and stole
T various items which were subsequently found by PW1 to T
have been lost. He fled from House 1 leaving his
U U
V V
由此
A
-5- A
B belongings Exhibits 1 to 6 behind after he had heard noise B
coming from the 1st floor;
C C
(c) After he had burgled House 1, he sneaked back to the
D Mainland on the same day, i.e. 15 October 2011; D
(d) He had sold the “Apple” iPod MP3 player, 2 digital
E E
cameras, the rucksack and the black laptop computer stolen
F from House 1 to an unknown male in the Mainland for F
RMB¥6,000. He had thrown away PW1’s sport shoes,
G G
Hong Kong identity card and Australian passport;
H (e) On 27 October 2011, he sneaked into Hong Kong from the H
Mainland again;
I I
(f) He climbed into the garden of House 2, opened the kitchen
J J
window, broke into House 2, ransacked House 2 and stole
HK$3,300, RMB¥1,000, a mobile phone, a watch and an K
K
Octopus card;
L L
(g) He stayed overnight on a truck in Sheung Shui on 28
October 2011; and M
M
(h) When he was trying to sneak back to the Mainland on 29
N N
October 2011 by hiding himself in a truck, he was arrested
O
by the police. O
P P
(ix) Two fingerprints lifted from House 1 and one fingerprint lifted
Q from House 2 were subsequently found to be the defendant’s Q
fingerprints.
R R
S The defendant’s previous conviction record and antecedents S
3. The defendant has 16 previous criminal convictions in Hong Kong –
T T
8 previous convictions of remaining in Hong Kong without the authority of
U U
V V
由此
A
-6- A
B the Director of Immigration after having landed unlawfully in Hong Kong, B
5 previous convictions of burglary and 3 previous convictions of theft. His
C C
last convictions of two charges of burglary, one charge of theft and one
D charge of unlawful remaining were sentenced in October 2008. He was last D
discharged from prison on 27 June 2011.
E E
F 4. He said he was born in the Mainland in August 1980. He is now 31 F
years old. He has received education up to primary one level.
G G
H Mitigation H
5. Mr Lam submitted that the burglaries were not carefully planned
I I
ones, and that the defendant pleaded guilty to the charges thus showing his
J J
remorse. A letter from the defendant was also submitted to this court asking
for leniency. K
K
L L
Sentence
6. The maximum sentence for the offence under section 38(1)(b) of the M
M
Immigration Ordinance is 3 years’ imprisonment. I am aware of the
N N
decision in R v So Man King [1989] 1 HKLR 142 but the defendant here
O
has 8 previous convictions of unlawful remaining thus justifying a heavier O
sentence for deterrence. In this connection, for each of Charge 2 and
P P
Charge 4, I adopt a starting point of 33 months’ imprisonment. One-third
Q discount is given to the defendant for his guilty plea thus reducing the Q
sentence to 22 months’ imprisonment for each of Charge 2 and Charge 4.
R R
S 7. In HKSAR v Lau Pang [2004] 3 HKLRD 565, it was held inter alia S
that (i) 3 years’ imprisonment was the proper starting point for a first
T T
offender of full age in a case of domestic burglary and (ii) the sentence for
U U
V V
由此
A
-7- A
B burglary should be consecutive to the sentence for the immigration offence. B
The defendant here is not a first offender of burglary cases. For each of
C C
Charge 1 and 3, I adopt a starting point of 3½ years’ imprisonment. One-
D third discount is given to the defendant for his guilty plea thus reducing the D
sentence to 28 months’ imprisonment for each of Charge 1 and Charge 3.
E E
8. There is no other valid mitigating feature justifying further reduction F
F
in sentence.
G G
9. On totality, having considered HKSAR v Lau Pang, HKSAR v Tin Fei
H H
Lung CACC 337/2003 and HKSAR v Chow Keung CACC478/2006, I order
I that: I
J J
(i) the sentences in Charges 1 and 2, i.e. 28 months and 22
months, to run consecutively; K
K
(ii) 15 months’ imprisonment in Charge 4 to run consecutively
L L
with the 50 months’ imprisonment imposed in Charges 1 and 2;
and M
M
(iii) all other terms to run concurrently.
N N
O
The total sentence is therefore 5 years and 5 months’ imprisonment being O
the aggregate of 28 months in Charge 1, 22 months in Charge 2 and 15
P P
months in Charge 4.
Q Q
R KH Cheang R
Deputy District Judge
S S
T T
U U
V V