區域法院（刑事）Deputy District Judge Kathie Cheung29/2/2016
DCCC51/2016
A A
B B
DCCC 51/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 51 OF 2016 E
F F
------------------------
G HKSAR G
v
H H
LIU HUAI QILIN
I ------------------------ I
J J
Before: Deputy District Judge Kathie Cheung
K Date: 1 March 2016 K
Present: Mr Simon Kwong, Public Prosecutor, for HKSAR
L L
Mr Ng Kin Wah Kevin of Kevin Ng & Co, assigned by the
M Director of Legal Aid, for the defendant M
Offence: [1] Burglary (入屋犯法罪)
N N
[2] Remaining in Hong Kong without the authority of the
O O
Director of Immigration after having landed unlawfully in
P
Hong Kong (在香港非法入境後未得入境事務處處長授權 P
而留在香港)
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “Burglary”, B
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (first
C C
charge) and one count of “Remaining in Hong Kong without the authority
D of the Director of Immigration after having landed unlawfully in Hong D
Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap
E E
115 (second charge).
F F
Facts
G G
H 2. X resided in a 2-storey apartment located at No 19 Middle H
Gap Road, Central, Hong Kong (“Apartment”) together with his wife Y, 2
I I
children and 2 domestic helpers. The Apartment was surrounded by a
J garden. Security devices including CCTV system and barbed wire fences J
were installed but there was no CCTV camera inside the Apartment. Two
K K
security guards were employed.
L L
M
3. At about 7 pm on 11 October 2015, X left the Apartment with M
Y for dinner but before leaving, X checked his personal belongings proper
N N
and that all windows to his master bedroom were locked. X’s children, as
O well as the domestic helpers, remained at home. O
P P
4. At about 9:15 pm on the same day, a security guard of the
Q Apartment was on patrol duty and he noticed a male wearing a hood near Q
the toilet of the garden. The security guard shouted at the male, who threw
R R
a stone at him and fled. X was informed and returned to the Apartment
S shortly. S
T T
U U
V V
- 3 -
A A
B 5. Upon checking, signs of ransacking were observed in the B
master bedroom and the reading room. Prize mark was noted on the toilet
C C
window frame inside the master bedroom. Case was then reported.
D D
6. A total of 12 watches (approximate total value was
E E
HK$2,075,000), 5 jade necklaces, 2 gold brooches and some jewelleries
F (approximate total value was HK$231,000) were found missing from the F
master bedroom and reading room of the Apartment. The total
G G
approximate value of all stolen items was HK$2,306,000.
H H
7. One of the missing watches, valued at about HK$400,000,
I I
was found and recovered later that night by one of the domestic helpers in
J the garden of the Apartment. Other stolen items were not recovered. Upon J
searching, police found 3 gloves on the barbed wire and on the ground near
K K
the barbed wire.
L L
M
8. On the same day when seeking medical treatment, it was M
revealed that the defendant did not have any Hong Kong identity card. The
N N
defendant was then arrested for the offence of “unlawful remaining”.
O O
9. Subsequently, the defendant was brought back to the scene
P P
and, under caution, he pointed out that the Apartment was the building
Q where he committed burglary with 3 others and he also pointed out the Q
escape route to police officers.
R R
S 10. In subsequent video-recorded interviews, the defendant S
admitted under caution that:
T T
U U
V V
- 4 -
A A
B (a) He got to know 3 other males called “XiaoFu”; “Ah B
Tung” and “XiaoXiong” through online games 2-3
C C
years ago.
D D
(b) They became friends and eventually decided to come to
E E
Hong Kong to steal.
F F
(c) They met in Shenzhen on 9 October 2015 and illegally
G G
entered Hong Kong by climbing through some metal
H fences in Sha Tau Kok. H
I I
(d) They brought with them 3 rucksacks containing food, 3
J torches and 2 screwdrivers. J
K K
(e) Eventually they decided to break into the Apartment in
L L
the evening on 11 October 2015 to steal.
M M
(f) They first spent some time figuring out the blind spots
N N
of the CCTV systems before entering the garden of the
O Apartment by climbing up trees and stepping over the O
barbed wire fences.
P P
Q (g) They were wearing gloves and hoods. Q
R R
(h) They formed a “ladder” by stepping on other’s
S shoulders and climbed to the 2nd Floor of the Apartment, S
where a window was prized open by XiaoXiong using
T T
screwdrivers.
U U
V V
- 5 -
A A
B B
(i) Inside the Apartment, they ransacked the master
C C
bedroom and reading room. The defendant stole some
D jewelleries from the reading room and kept them in a D
rucksack.
E E
F (j) XiaoXiong was responsible for keeping lookout and he F
soon shouted that they had been discovered.
G G
H (k) They then fled through the window of the toilet, H
climbed over the wall and barbed wire fences.
I I
J (l) The defendant was the last one to left but he J
accidentally injured himself while climbing the barbed
K K
wires.
L L
M
(m) He felt unwell and thus took a taxi to the Shatin M
Hospital to seek treatment, alleging that he was an
N N
illegal immigrant.
O O
(n) He was shown the gloves recovered at scene and he
P P
identified them to be those used by them when
Q committing the offence. Q
R R
11. CCTV footage between 8:43 pm to 9:19 pm on the date of
S offence captured 4 hooded burglars climbing in over the wire fences, S
climbing up the Apartment by stepping on each other’s shoulders and the
T T
U U
V V
- 6 -
A A
B lookout being discovered by security guard and later escaping with others B
by climbing over the fences.
C C
D 12. Immigration record of the defendant was checked and D
confirmed that there was no record of the defendant entering into Hong
E E
Kong.
F F
Mitigation
G G
H 13. The defendant is aged 25, divorced with a 1-year-old son. He H
had no criminal record in Hong Kong. Prior to the arrest, he was living
I I
with his son and parents in China and worked as a restaurant waiter earning
J RMB2,000 per month. He had to support his son but not his parents. He J
committed the present offences as he needed to repay a debt of
K K
RMB60,000.
L L
M
14. In mitigation, Mr Ng referred to several cases1 and submitted M
that the defendant and the other culprits were not professional burglars.
N N
There was no ring leader and no detailed planning or organization. No
O heavy tools or equipments were used. The defendant did not use tools to O
break into the premises. He only followed others into the premises after
P P
the window of the toilet was prized open. Further, no occupants of the
Q premises were aware of the burglary and no serious damage was caused to Q
the premises. The only aggravating factors were that the burglary was
R R
committed by 4 persons and the value of the stolen properties was
S S
T T
1
HKSAR v Lau Pang, CACC 252/2004; HKSAR v Cheng Wai Kai, CACC 338-339/2007 and HKSAR v
Kei San Man & Another, CACC 246/1999
U U
V V
- 7 -
A A
B substantial. It was submitted that the starting point would not be more than B
3.5 years’ imprisonment.
C C
D 15. Mr Ng also submitted that given the defendant’s young age, D
that he has a 1-year-old son who needs his care and support, there was
E E
strong humanitarian ground to warrant part of the sentence for the unlawful
F remaining charge to run concurrently with the sentence for the burglary F
charge. Mr Ng further submitted that the total sentence should not be more
G G
than 40 months’ imprisonment.
H H
Sentence
I I
J 16. There is a well settled sentencing guideline for burglary of J
domestic premises. According to the guideline, the starting point for a
K K
single burglary of domestic premises committed by a first offender of full
L
age where there are no aggravating or mitigating features is 3 years’ L
M
imprisonment. M
N N
17. The starting point can be adjusted upward if there are
O aggravating circumstances such as (1) the offence is carefully planned and O
skillfully executed involving the use of heavy instrument or equipment; (2)
P P
the offence is committed by two or more people; (3) the offence targets at
Q substantial premises and involves substantial properties; (4) the offender is Q
a professional burglar and not just an opportunist; (5) the offender has
R R
previous convictions, particularly previous conviction of similar nature;
S and (6) the offender commits multiple offences (see HKSAR v Cheng Wai S
Kai, CACC 338-339/2007).
T T
U U
V V
- 8 -
A A
B 18. In relation to the offence of remaining in Hong Kong B
unlawfully, it is well settled that a sentence of 15 months’ imprisonment
C C
after a guilty plea is the appropriate sentence. It is also well settled that the
D sentence for burglary should run consecutively to the sentence for D
unlawfully remaining in Hong Kong (see HKSAR v Kei San Man &
E E
Another, CACC 246/1999 and HKSAR v Lau Pang, CACC 252/2004).
F F
19. For the first charge, i.e. the burglary offence, I find that there
G G
are aggravating features in the commission of the offence: (1) the offence
H was committed by a total of 4 persons, (2) properties of substantial value H
had been stolen and not recovered, (3) the defendant and the other culprits
I I
sneaked into Hong Kong for the purpose of committing burglary, and (4)
J the burglary was planned in that they brought along tools such as J
screwdrivers and torches, they also spent some time to figure out the blind
K K
spots of the CCTV systems before entering the premises, they were
L L
wearing gloves and hoods at the time of the commission of the offence to
M
avoid subsequent identification by others and one of them was assigned to M
act as a lookout. In the circumstances, I consider the usual starting point of
N N
36 months should be enhanced by 9 months to reflect these aggravating
O features. Since the defendant pleaded guilty to the charge, he is entitled to O
the usual 1/3 discount on his guilty plea. Therefore, the sentence is
P P
reduced to 30 months’ imprisonment. Apart from his guilty plea, I do not
Q find any other mitigating factor justifying a further reduction of sentence. Q
R R
20. For the second charge, it is the defendant’s first conviction. I
S am satisfied that the sentence after plea should be 15 months’ S
imprisonment.
T T
U U
V V
- 9 -
A A
B 21. As I mentioned before, it is well settled that the sentences for B
the first and second charge should run consecutively. Having taken into
C C
consideration the totality principle, I am satisfied that a total sentence of 40
D months is sufficient to reflect the criminality of the defendant. I therefore D
order that 10 months of the sentence for the second charge should run
E E
consecutively to the sentence for the first charge. I hereby sentence the
F defendant to a total of 40 months’ imprisonment. F
G G
H H
I I
J ( Kathie Cheung ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 51/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 51 OF 2016 E
F F
------------------------
G HKSAR G
v
H H
LIU HUAI QILIN
I ------------------------ I
J J
Before: Deputy District Judge Kathie Cheung
K Date: 1 March 2016 K
Present: Mr Simon Kwong, Public Prosecutor, for HKSAR
L L
Mr Ng Kin Wah Kevin of Kevin Ng & Co, assigned by the
M Director of Legal Aid, for the defendant M
Offence: [1] Burglary (入屋犯法罪)
N N
[2] Remaining in Hong Kong without the authority of the
O O
Director of Immigration after having landed unlawfully in
P
Hong Kong (在香港非法入境後未得入境事務處處長授權 P
而留在香港)
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “Burglary”, B
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (first
C C
charge) and one count of “Remaining in Hong Kong without the authority
D of the Director of Immigration after having landed unlawfully in Hong D
Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap
E E
115 (second charge).
F F
Facts
G G
H 2. X resided in a 2-storey apartment located at No 19 Middle H
Gap Road, Central, Hong Kong (“Apartment”) together with his wife Y, 2
I I
children and 2 domestic helpers. The Apartment was surrounded by a
J garden. Security devices including CCTV system and barbed wire fences J
were installed but there was no CCTV camera inside the Apartment. Two
K K
security guards were employed.
L L
M
3. At about 7 pm on 11 October 2015, X left the Apartment with M
Y for dinner but before leaving, X checked his personal belongings proper
N N
and that all windows to his master bedroom were locked. X’s children, as
O well as the domestic helpers, remained at home. O
P P
4. At about 9:15 pm on the same day, a security guard of the
Q Apartment was on patrol duty and he noticed a male wearing a hood near Q
the toilet of the garden. The security guard shouted at the male, who threw
R R
a stone at him and fled. X was informed and returned to the Apartment
S shortly. S
T T
U U
V V
- 3 -
A A
B 5. Upon checking, signs of ransacking were observed in the B
master bedroom and the reading room. Prize mark was noted on the toilet
C C
window frame inside the master bedroom. Case was then reported.
D D
6. A total of 12 watches (approximate total value was
E E
HK$2,075,000), 5 jade necklaces, 2 gold brooches and some jewelleries
F (approximate total value was HK$231,000) were found missing from the F
master bedroom and reading room of the Apartment. The total
G G
approximate value of all stolen items was HK$2,306,000.
H H
7. One of the missing watches, valued at about HK$400,000,
I I
was found and recovered later that night by one of the domestic helpers in
J the garden of the Apartment. Other stolen items were not recovered. Upon J
searching, police found 3 gloves on the barbed wire and on the ground near
K K
the barbed wire.
L L
M
8. On the same day when seeking medical treatment, it was M
revealed that the defendant did not have any Hong Kong identity card. The
N N
defendant was then arrested for the offence of “unlawful remaining”.
O O
9. Subsequently, the defendant was brought back to the scene
P P
and, under caution, he pointed out that the Apartment was the building
Q where he committed burglary with 3 others and he also pointed out the Q
escape route to police officers.
R R
S 10. In subsequent video-recorded interviews, the defendant S
admitted under caution that:
T T
U U
V V
- 4 -
A A
B (a) He got to know 3 other males called “XiaoFu”; “Ah B
Tung” and “XiaoXiong” through online games 2-3
C C
years ago.
D D
(b) They became friends and eventually decided to come to
E E
Hong Kong to steal.
F F
(c) They met in Shenzhen on 9 October 2015 and illegally
G G
entered Hong Kong by climbing through some metal
H fences in Sha Tau Kok. H
I I
(d) They brought with them 3 rucksacks containing food, 3
J torches and 2 screwdrivers. J
K K
(e) Eventually they decided to break into the Apartment in
L L
the evening on 11 October 2015 to steal.
M M
(f) They first spent some time figuring out the blind spots
N N
of the CCTV systems before entering the garden of the
O Apartment by climbing up trees and stepping over the O
barbed wire fences.
P P
Q (g) They were wearing gloves and hoods. Q
R R
(h) They formed a “ladder” by stepping on other’s
S shoulders and climbed to the 2nd Floor of the Apartment, S
where a window was prized open by XiaoXiong using
T T
screwdrivers.
U U
V V
- 5 -
A A
B B
(i) Inside the Apartment, they ransacked the master
C C
bedroom and reading room. The defendant stole some
D jewelleries from the reading room and kept them in a D
rucksack.
E E
F (j) XiaoXiong was responsible for keeping lookout and he F
soon shouted that they had been discovered.
G G
H (k) They then fled through the window of the toilet, H
climbed over the wall and barbed wire fences.
I I
J (l) The defendant was the last one to left but he J
accidentally injured himself while climbing the barbed
K K
wires.
L L
M
(m) He felt unwell and thus took a taxi to the Shatin M
Hospital to seek treatment, alleging that he was an
N N
illegal immigrant.
O O
(n) He was shown the gloves recovered at scene and he
P P
identified them to be those used by them when
Q committing the offence. Q
R R
11. CCTV footage between 8:43 pm to 9:19 pm on the date of
S offence captured 4 hooded burglars climbing in over the wire fences, S
climbing up the Apartment by stepping on each other’s shoulders and the
T T
U U
V V
- 6 -
A A
B lookout being discovered by security guard and later escaping with others B
by climbing over the fences.
C C
D 12. Immigration record of the defendant was checked and D
confirmed that there was no record of the defendant entering into Hong
E E
Kong.
F F
Mitigation
G G
H 13. The defendant is aged 25, divorced with a 1-year-old son. He H
had no criminal record in Hong Kong. Prior to the arrest, he was living
I I
with his son and parents in China and worked as a restaurant waiter earning
J RMB2,000 per month. He had to support his son but not his parents. He J
committed the present offences as he needed to repay a debt of
K K
RMB60,000.
L L
M
14. In mitigation, Mr Ng referred to several cases1 and submitted M
that the defendant and the other culprits were not professional burglars.
N N
There was no ring leader and no detailed planning or organization. No
O heavy tools or equipments were used. The defendant did not use tools to O
break into the premises. He only followed others into the premises after
P P
the window of the toilet was prized open. Further, no occupants of the
Q premises were aware of the burglary and no serious damage was caused to Q
the premises. The only aggravating factors were that the burglary was
R R
committed by 4 persons and the value of the stolen properties was
S S
T T
1
HKSAR v Lau Pang, CACC 252/2004; HKSAR v Cheng Wai Kai, CACC 338-339/2007 and HKSAR v
Kei San Man & Another, CACC 246/1999
U U
V V
- 7 -
A A
B substantial. It was submitted that the starting point would not be more than B
3.5 years’ imprisonment.
C C
D 15. Mr Ng also submitted that given the defendant’s young age, D
that he has a 1-year-old son who needs his care and support, there was
E E
strong humanitarian ground to warrant part of the sentence for the unlawful
F remaining charge to run concurrently with the sentence for the burglary F
charge. Mr Ng further submitted that the total sentence should not be more
G G
than 40 months’ imprisonment.
H H
Sentence
I I
J 16. There is a well settled sentencing guideline for burglary of J
domestic premises. According to the guideline, the starting point for a
K K
single burglary of domestic premises committed by a first offender of full
L
age where there are no aggravating or mitigating features is 3 years’ L
M
imprisonment. M
N N
17. The starting point can be adjusted upward if there are
O aggravating circumstances such as (1) the offence is carefully planned and O
skillfully executed involving the use of heavy instrument or equipment; (2)
P P
the offence is committed by two or more people; (3) the offence targets at
Q substantial premises and involves substantial properties; (4) the offender is Q
a professional burglar and not just an opportunist; (5) the offender has
R R
previous convictions, particularly previous conviction of similar nature;
S and (6) the offender commits multiple offences (see HKSAR v Cheng Wai S
Kai, CACC 338-339/2007).
T T
U U
V V
- 8 -
A A
B 18. In relation to the offence of remaining in Hong Kong B
unlawfully, it is well settled that a sentence of 15 months’ imprisonment
C C
after a guilty plea is the appropriate sentence. It is also well settled that the
D sentence for burglary should run consecutively to the sentence for D
unlawfully remaining in Hong Kong (see HKSAR v Kei San Man &
E E
Another, CACC 246/1999 and HKSAR v Lau Pang, CACC 252/2004).
F F
19. For the first charge, i.e. the burglary offence, I find that there
G G
are aggravating features in the commission of the offence: (1) the offence
H was committed by a total of 4 persons, (2) properties of substantial value H
had been stolen and not recovered, (3) the defendant and the other culprits
I I
sneaked into Hong Kong for the purpose of committing burglary, and (4)
J the burglary was planned in that they brought along tools such as J
screwdrivers and torches, they also spent some time to figure out the blind
K K
spots of the CCTV systems before entering the premises, they were
L L
wearing gloves and hoods at the time of the commission of the offence to
M
avoid subsequent identification by others and one of them was assigned to M
act as a lookout. In the circumstances, I consider the usual starting point of
N N
36 months should be enhanced by 9 months to reflect these aggravating
O features. Since the defendant pleaded guilty to the charge, he is entitled to O
the usual 1/3 discount on his guilty plea. Therefore, the sentence is
P P
reduced to 30 months’ imprisonment. Apart from his guilty plea, I do not
Q find any other mitigating factor justifying a further reduction of sentence. Q
R R
20. For the second charge, it is the defendant’s first conviction. I
S am satisfied that the sentence after plea should be 15 months’ S
imprisonment.
T T
U U
V V
- 9 -
A A
B 21. As I mentioned before, it is well settled that the sentences for B
the first and second charge should run consecutively. Having taken into
C C
consideration the totality principle, I am satisfied that a total sentence of 40
D months is sufficient to reflect the criminality of the defendant. I therefore D
order that 10 months of the sentence for the second charge should run
E E
consecutively to the sentence for the first charge. I hereby sentence the
F defendant to a total of 40 months’ imprisonment. F
G G
H H
I I
J ( Kathie Cheung ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V