DCCC543/2023 HKSAR v. TIAN HONGLIANG AND ANOTHER - LawHero
DCCC543/2023
District CourtDeputy District Judge Ada Yim31/1/2024[2024] HKDC 315
DCCC543/2023
A A
B B
DCCC 543/2023
C [2024] HKDC 315 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 543 OF 2023 E
F --------------------------- F
HKSAR
G G
v.
H TIAN Hongliang (D1) H
YEUNG Tat-fun (D2)
I I
----------------------------
J J
Before: Deputy District Judge Ada Yim in Court
K K
Date: 1 February 2024
L Present: Mr. CHEUNG Jeremy Man-Fai, Counsel on Fiat, for HKSAR L
Mr. CHENG Kee Tin Sky, instructed by Messrs Simon C.W.
M M
Yung & Co., assigned by the Director of Legal Aid, for the 1st
N N
Defendant
O
Mr. WONG Cho Lik, instructed by Messrs Lau & Ngan, O
Solicitors LLP,assigned by the Director of Legal Aid, for the
P P
2nd Defendant
Q Offence: [1] Conspiracy to burgle Q
[2] Illegal Remaining
R R
[3] Going equipped for stealing
S -------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. The defendants were jointly charged with conspiracy to C
burgle, contrary to section 11(1)(a) and (4) of the Theft Ordinance,
D D
Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.
E D1 was also charged with unlawful remaining contrary to section 38(1)(b) E
of the Immigration Ordinance, Cap 115, while D2 was also charged with
F F
going equipped for stealing, contrary to section 27(1) of the Theft
G Ordinance, Cap. 210. The defendants pleaded guilty to the conspiracy, and G
D1 also pleaded guilty to the immigration offence, they admitted the facts
H H
and were convicted accordingly. Charge 3 was left on the court file not to
I proceed without leave. I
J J
FACTS
K K
2. On 14 December 2022, at around 3:30pm Mr Pang checked
L L
correct the lift machine room (“the Room”) on 24/F Arther Commercial
M Building and secured the door by a padlock. A no entry without permission M
notice was posted on the door. At around 8:45pm a worker found the
N N
padlock gone missing.
O O
3. Time being at around 8:30pm, D1 & D2 were observed
P P
leaving the Building, and D2 had a bag full of items in his hand. Police
Q intercepted D2 for enquiries. Upon search, among other things, a crowbar, Q
2 screwdrivers, a spanner, a pair of gloves and 8 skeleton keys were found
R R
inside the bag. Both of the defendants were arrested for attempted burglary.
S D1 was also in possession of a pair of gloves. S
T T
4. Upon checking, prize mark was observed at the door lock of
U the Room and an umbrella was left inside. Further investigation revealed U
V V
-3-
A A
B B
that D1 entered Hong Kong unlawfully the week before. The duo had
C phone calls between 12 and 14 December 2022. They entered the Building C
around 5:31pm and 5:36pm on 14 December 2022 respectively, and D1
D D
left an umbrella inside the Room.
E E
5. At the material times, D1 and D2 conspired together to burgle
F the Room. D1 entered Hong Kong unlawfully and remained without F
authority.
G G
H MITIGATION H
I I
D1
J 6. D1 aged 48, Mainland resident, married but separated with 2 J
children. He has been unemployed since 2019 and his last gainful
K K
employment was working as a lorry driver in Shenzhen earning RMB5,000
L per month. L
M M
7. D1 has 3 previous convictions, including 3 counts of burglary
N N
and 2 counts of unlawful remaining. He was sentenced to a total of 51
O
months’ imprisonment for 3 counts of burglary and 1 count of unlawful O
remaining in June 2018. After that he was sentenced to 17 months for
P P
unlawful remaining in April 2021.
Q Q
8. D1 conspired with D2 to burgle the lift machine room of a
R commercial building in Kowloon. They equipped with tools for the R
burglary, the door was prized open, D1 left an umbrella inside the room.
S S
D1 pleaded guilty and has been remanded since his arrest. D1 understands
T that immediate imprisonment is inevitable and the court might enhance the T
starting point in view of his previous criminal records. Although it was
U U
V V
-4-
A A
B B
well settled that the sentence for burglary should run consecutively to the
C sentence for unlawful remaining, D1 pleads leniency and urges the court C
to consider a partial concurrent sentence.
D D
E D2 E
9. D2 aged 47, single staying in temporary hotel accommodation
F F
at the time of arrest. He used to work as a casual artificer at construction
G site, but has been unemployed since 2020. G
H H
10. D2 has 16 previous convictions, including 12 counts of
I burglary, 2 counts going equipped for stealing, one count of handing stolen I
goods, and the remaining mainly related to dangerous drugs. He was last
J J
sentenced to 24 months’ imprisonment for 2 counts of burglary committed
K in May 2021 and was released on 9 December 2022. He committed the K
present case on 14 December 2022.
L L
11. D2 conspired with D1 to burgle the lift machine room of a
M M
commercial building in Kowloon. They equipped with tools for the
N N
burglary, the door was prized open, D1 left an umbrella inside the room.
O
D2 did not take an active part in gaining entry to the Room. They did not O
encountered or confronted any person in the Building and nothing gone
P P
missing. That D2 is a repeat offender and reoffended shortly after release
Q from prison are aggravating factors but the court is urged not to enhance Q
the starting point by more than 3 months.
R R
S SENTENCE S
T T
12. The customary starting point of sentence for non-domestic
U burglary is 2.5 years’ imprisonment. Such burglaries will involve a U
V V
-5-
A A
B B
measure of planning, and thus a degree of premeditation and planning is
C already built into the conventional starting-point. The conventional C
starting-point can be increased in the case of professional criminals who
D D
plan their burglaries with meticulous care and steal goods and cash of
E considerable value. Same principle is applicable to domestic and non- E
domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.
F F
G 13. Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai G
CACC338 & 339/2007 a case of burglary of non-domestic premises:-
H H
I “The proper starting point for sentence in a case of burglary of I
non-domestic premises is 30 months’ imprisonment (see Rv
Wong Man unreported, CACC 372/1992). The starting point
J can be adjusted upwards if there are aggravating circumstances J
such as: (1) the offence is carefully planned and skilfully
K
executed involving the use of heavy instrument or equipment; K
(2) the offence is committed by two or more people; (3) the
offence targets at substantial premises and involves substantial
L properties; (4) the offender is a professional burglar and not just L
an opportunist; (5) the offender has previous convictions,
particularly previous conviction of similar nature, and (6) the
M M
offender commits multiple offences.”
N N
14. In the present case, the duo conspired together to burgle the
O lift machine room of a commercial building. Both of them are repeat O
offender of similar offences. They purchased tools (including crowbar,
P P
screwdrivers, spanner, and skeleton keys) for the burglary, each of them
Q also brought along a pair of gloves. The door was prized open; at least one Q
of them went inside the room and left behind an umbrella. All these
R R
suggested the two professional burglars conspired to commit a well-planed
S burglary. S
T T
15. The usual starting point for non-domestic premises is one of
U 30 months’ imprisonment. Yet the facts that it was a joint enterprise by U
V V
-6-
A A
B B
two professional burglars and their respective previous burglary conviction
C records are distinct aggravating features. I consider the appropriate starting C
point for charge one should be one of 36 months. The defendants are
D D
entitled to 1/3 discount for their plea and I do not consider there to be any
E further mitigating factor. E
F 16. In relation to the immigration offence, a term of 15 months’ F
imprisonment after a guilty plea for a fresh offender has been settled as the
G G
appropriate starting point in R v So Man-king & Ors [1989] 1 HKLR 142.
H This is D1’s third conviction on unlawful remaining since 2018. I consider H
the appropriate sentence upon plea is 21 months’ imprisonment. As the
I I
defence submitted, it has also been well settled that the sentence for
J burglary should run consecutively to the sentence for unlawful remaining: J
HKSAR v Kei San Man & Anor. CACC246/1999 (10 September 1999,
K K
unreported). Yet having considered the totality principal, I order 15
L months of unlawful remaining to be served concurrently with that for the L
burglary.
M M
N ORDER N
O O
Charge 1 D1 is sentenced to 24 months’ imprisonment.
D2 is sentenced to 24 months’ imprisonment.
P P
Q
Charge 2 D1 is sentenced to 21 months’ imprisonment, Q
15 months served concurrently with Charge 1,
R making a total of 30 months. R
S S
T T
( Ada Yim )
Deputy District Judge
U U
V V
A A
B B
DCCC 543/2023
C [2024] HKDC 315 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 543 OF 2023 E
F --------------------------- F
HKSAR
G G
v.
H TIAN Hongliang (D1) H
YEUNG Tat-fun (D2)
I I
----------------------------
J J
Before: Deputy District Judge Ada Yim in Court
K K
Date: 1 February 2024
L Present: Mr. CHEUNG Jeremy Man-Fai, Counsel on Fiat, for HKSAR L
Mr. CHENG Kee Tin Sky, instructed by Messrs Simon C.W.
M M
Yung & Co., assigned by the Director of Legal Aid, for the 1st
N N
Defendant
O
Mr. WONG Cho Lik, instructed by Messrs Lau & Ngan, O
Solicitors LLP,assigned by the Director of Legal Aid, for the
P P
2nd Defendant
Q Offence: [1] Conspiracy to burgle Q
[2] Illegal Remaining
R R
[3] Going equipped for stealing
S -------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. The defendants were jointly charged with conspiracy to C
burgle, contrary to section 11(1)(a) and (4) of the Theft Ordinance,
D D
Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.
E D1 was also charged with unlawful remaining contrary to section 38(1)(b) E
of the Immigration Ordinance, Cap 115, while D2 was also charged with
F F
going equipped for stealing, contrary to section 27(1) of the Theft
G Ordinance, Cap. 210. The defendants pleaded guilty to the conspiracy, and G
D1 also pleaded guilty to the immigration offence, they admitted the facts
H H
and were convicted accordingly. Charge 3 was left on the court file not to
I proceed without leave. I
J J
FACTS
K K
2. On 14 December 2022, at around 3:30pm Mr Pang checked
L L
correct the lift machine room (“the Room”) on 24/F Arther Commercial
M Building and secured the door by a padlock. A no entry without permission M
notice was posted on the door. At around 8:45pm a worker found the
N N
padlock gone missing.
O O
3. Time being at around 8:30pm, D1 & D2 were observed
P P
leaving the Building, and D2 had a bag full of items in his hand. Police
Q intercepted D2 for enquiries. Upon search, among other things, a crowbar, Q
2 screwdrivers, a spanner, a pair of gloves and 8 skeleton keys were found
R R
inside the bag. Both of the defendants were arrested for attempted burglary.
S D1 was also in possession of a pair of gloves. S
T T
4. Upon checking, prize mark was observed at the door lock of
U the Room and an umbrella was left inside. Further investigation revealed U
V V
-3-
A A
B B
that D1 entered Hong Kong unlawfully the week before. The duo had
C phone calls between 12 and 14 December 2022. They entered the Building C
around 5:31pm and 5:36pm on 14 December 2022 respectively, and D1
D D
left an umbrella inside the Room.
E E
5. At the material times, D1 and D2 conspired together to burgle
F the Room. D1 entered Hong Kong unlawfully and remained without F
authority.
G G
H MITIGATION H
I I
D1
J 6. D1 aged 48, Mainland resident, married but separated with 2 J
children. He has been unemployed since 2019 and his last gainful
K K
employment was working as a lorry driver in Shenzhen earning RMB5,000
L per month. L
M M
7. D1 has 3 previous convictions, including 3 counts of burglary
N N
and 2 counts of unlawful remaining. He was sentenced to a total of 51
O
months’ imprisonment for 3 counts of burglary and 1 count of unlawful O
remaining in June 2018. After that he was sentenced to 17 months for
P P
unlawful remaining in April 2021.
Q Q
8. D1 conspired with D2 to burgle the lift machine room of a
R commercial building in Kowloon. They equipped with tools for the R
burglary, the door was prized open, D1 left an umbrella inside the room.
S S
D1 pleaded guilty and has been remanded since his arrest. D1 understands
T that immediate imprisonment is inevitable and the court might enhance the T
starting point in view of his previous criminal records. Although it was
U U
V V
-4-
A A
B B
well settled that the sentence for burglary should run consecutively to the
C sentence for unlawful remaining, D1 pleads leniency and urges the court C
to consider a partial concurrent sentence.
D D
E D2 E
9. D2 aged 47, single staying in temporary hotel accommodation
F F
at the time of arrest. He used to work as a casual artificer at construction
G site, but has been unemployed since 2020. G
H H
10. D2 has 16 previous convictions, including 12 counts of
I burglary, 2 counts going equipped for stealing, one count of handing stolen I
goods, and the remaining mainly related to dangerous drugs. He was last
J J
sentenced to 24 months’ imprisonment for 2 counts of burglary committed
K in May 2021 and was released on 9 December 2022. He committed the K
present case on 14 December 2022.
L L
11. D2 conspired with D1 to burgle the lift machine room of a
M M
commercial building in Kowloon. They equipped with tools for the
N N
burglary, the door was prized open, D1 left an umbrella inside the room.
O
D2 did not take an active part in gaining entry to the Room. They did not O
encountered or confronted any person in the Building and nothing gone
P P
missing. That D2 is a repeat offender and reoffended shortly after release
Q from prison are aggravating factors but the court is urged not to enhance Q
the starting point by more than 3 months.
R R
S SENTENCE S
T T
12. The customary starting point of sentence for non-domestic
U burglary is 2.5 years’ imprisonment. Such burglaries will involve a U
V V
-5-
A A
B B
measure of planning, and thus a degree of premeditation and planning is
C already built into the conventional starting-point. The conventional C
starting-point can be increased in the case of professional criminals who
D D
plan their burglaries with meticulous care and steal goods and cash of
E considerable value. Same principle is applicable to domestic and non- E
domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.
F F
G 13. Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai G
CACC338 & 339/2007 a case of burglary of non-domestic premises:-
H H
I “The proper starting point for sentence in a case of burglary of I
non-domestic premises is 30 months’ imprisonment (see Rv
Wong Man unreported, CACC 372/1992). The starting point
J can be adjusted upwards if there are aggravating circumstances J
such as: (1) the offence is carefully planned and skilfully
K
executed involving the use of heavy instrument or equipment; K
(2) the offence is committed by two or more people; (3) the
offence targets at substantial premises and involves substantial
L properties; (4) the offender is a professional burglar and not just L
an opportunist; (5) the offender has previous convictions,
particularly previous conviction of similar nature, and (6) the
M M
offender commits multiple offences.”
N N
14. In the present case, the duo conspired together to burgle the
O lift machine room of a commercial building. Both of them are repeat O
offender of similar offences. They purchased tools (including crowbar,
P P
screwdrivers, spanner, and skeleton keys) for the burglary, each of them
Q also brought along a pair of gloves. The door was prized open; at least one Q
of them went inside the room and left behind an umbrella. All these
R R
suggested the two professional burglars conspired to commit a well-planed
S burglary. S
T T
15. The usual starting point for non-domestic premises is one of
U 30 months’ imprisonment. Yet the facts that it was a joint enterprise by U
V V
-6-
A A
B B
two professional burglars and their respective previous burglary conviction
C records are distinct aggravating features. I consider the appropriate starting C
point for charge one should be one of 36 months. The defendants are
D D
entitled to 1/3 discount for their plea and I do not consider there to be any
E further mitigating factor. E
F 16. In relation to the immigration offence, a term of 15 months’ F
imprisonment after a guilty plea for a fresh offender has been settled as the
G G
appropriate starting point in R v So Man-king & Ors [1989] 1 HKLR 142.
H This is D1’s third conviction on unlawful remaining since 2018. I consider H
the appropriate sentence upon plea is 21 months’ imprisonment. As the
I I
defence submitted, it has also been well settled that the sentence for
J burglary should run consecutively to the sentence for unlawful remaining: J
HKSAR v Kei San Man & Anor. CACC246/1999 (10 September 1999,
K K
unreported). Yet having considered the totality principal, I order 15
L months of unlawful remaining to be served concurrently with that for the L
burglary.
M M
N ORDER N
O O
Charge 1 D1 is sentenced to 24 months’ imprisonment.
D2 is sentenced to 24 months’ imprisonment.
P P
Q
Charge 2 D1 is sentenced to 21 months’ imprisonment, Q
15 months served concurrently with Charge 1,
R making a total of 30 months. R
S S
T T
( Ada Yim )
Deputy District Judge
U U
V V