區域法院（刑事）Deputy District Judge Veronica Heung28/12/2021[2021] HKDC 1650
DCCC324/2021
A A
B B
DCCC 324/2021
C [2021] HKDC 1650 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 324 OF 2021
F F
G ------------------------------------ G
HKSAR
H H
v
I WEI XIUQUE I
------------------------------------
J J
K Before: Deputy District Judge Veronica Heung K
Date: 29 December 2021 at West Kowloon Magistrates’ Courts
L L
Present: Ms Lee W Y Susanna, Counsel on Fiat, for HKSAR
M Mr Lau Hon Wang, instructed by Patrick Chu, Conti Wong M
Lawyers LLP, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: [1] - [5], [7] & [8] Burglary（入屋犯法罪） O
P
[6] Attempted burglary（企圖入屋犯法罪） P
[9] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong（在香港非法入境後未得入境事務處處長授 R
權而留在香港）
S S
T T
U U
V V
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A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. The defendant faces a total of nine charges, eight of which are E
Burglary, Charges 1 to 8, and one is Remaining in Hong Kong without the
F F
authority of Director of Immigration after having landed unlawfully in
G Hong Kong, Charge 9. G
H H
2. As a result of plea bargaining, the defendant pleaded guilty to
I Charges 2, 3, 4, 5 and 8, contrary to section 11(1)(b) and (4) of the Theft I
Ordinance, Cap 210, and Charge 9, contrary to section 38(1)(b) of the
J J
Immigration Ordinance, Cap 115. Full details of the offences are set out
K in the facts admitted by the defendant. The defendant was convicted of all K
these six charges accordingly.
L L
M 3. Upon application by the prosecution, I ordered Charges 1, 6 M
and 7 be left in the court file and not to be proceeded against defendant
N N
without leave of court.
O O
FACTS
P P
Q Q
Charge 2
R R
4. Chan Sau Kam lived in a village house in Tai Po Tsai, Sai
S S
Kung. On 22 June 2020 at around 10:05 pm, Ms Chan locked the iron
T
grille of her house and went to bed. On 23 June 2020, having heard that T
another house in Tai Po Tsai had been burgled in the small hours earlier
U U
V V
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A A
B B
that day, Ms Chan reviewed the CCTV installed in her house which showed
C on 23 June 2020 at 3:48 am, the defendant and an unknown male entered C
her house through the iron grille. The defendant went upstairs and the
D D
unknown male stayed at the entrance area. The unknown male took a pair
E of sneakers from the shoe rack and left at 3:59 am. The defendant also left E
the house at 4:03 am. Upon subsequent checking, Ms Chan noticed that a
F F
pair of sneakers valued at around HK$1,000 was missing from the shoe
G rack. G
H H
Charge 3
I I
5. Chan Wing Wah lived in a village house at Block 29, Wah On
J J
Villa in San Tin, Yuen Long. On 10 July 2020 at around 12:00 am, before
K going to bed, Mr Chan had locked the mosquito screen doors installed in K
the garden and the main entrance of his house. At around 7:00 am, Mr
L L
Chan woke up and noticed that both mosquito screen doors were prized
M open. Upon checking, Mr Chan discovered that cash of HK$13,000 and M
RMB700 was missing from a wallet that he placed in his bedroom. CCTV
N N
installed nearby captured that at 3:25 am, the defendant and an unknown
O male wandered around near Block 26. At 3:29 am, the defendant walked O
towards Block 29 and at 3:32 am, the unknown male followed the
P P
defendant. A print of the defendant’s left palm was found on a glass door
Q at the entrance of the house. Q
R R
Charge 4
S S
6. Lui Kam Cho was the owner of a village house in Tsz Tong
T T
Tsuen, Tai Po. Mr Lui had migrated to another country in 2019. His
U U
V V
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A A
B B
relative, Mr Hui was responsible for cleaning and managing the house. On
C 23 September 2020, Mr Hui’s wife entered the house and found an opened C
can of Coke on the table in the living room. Feeling suspicious, she
D D
notified Mr Hui who then came to the house. Mr Hui noticed signs of
E ransacking in two bedrooms. The wardrobe of the master bedroom was E
prized open. RMB10,000 was found missing from the wardrobe in the
F F
master bedroom and two camera lens valued at around HK$14,000 in total
G were missing from the guest bedroom. A print of the defendant’s left G
middle finger was found on the drawer of the wardrobe. Mr Hui last
H H
entered the house on 1 September 2020 and did not observe any sign of
I ransacking. I
J J
Charge 5
K K
7. Hung Chuen Sung lived in a village house situated in Wai Tau
L L
Tsuen, Tai Po. On 26 September 2020 at around 1:00 am, Mr Hung locked
M the doors and windows of the house. Before going to bed, Mr Hung also M
checked that a watch and cash of HK$30,000 were placed on a table inside
N N
his bedroom. On the same day at around 8:00 am, Mr Hung noticed that
O the main door of the house was prized open. Upon checking, his watch O
valued at around HK$7,000 and cash of HK$30,000 were missing from his
P P
bedroom. The cost of repairing the main door was HK$2,000. CCTV of
Q the next door neighbour captured that at 5:10 am, the defendant wandered Q
outside Mr Hung’s house. At 5:12 am, the defendant walked towards the
R R
entrance of Mr Hung’s house. At 5:19 am, an unknown male walked away
S from Mr Hung’s house. The defendant’s right ring fingerprint was found S
on the handle of Mr Hung’s bedroom.
T T
U U
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A A
B B
Charges 8 and 9
C C
8. Wong Sze Ki lived in “THE HOME RESORT” in Sha Kong
D D
Wai, Tin Shui Wai. On 30 September 2020 at around 3:30 am, Ms Wong
E was awakened by footsteps and saw a person leaving her bedroom. Ms E
Wong stayed in her bed and subsequently heard noises in her parents’
F F
bedroom and in the living room. Upon checking, Ms Wong confirmed that
G cash of HK$500 was missing from the storage room; cash of HK$4,000 G
was missing from her bedroom; cash of HK$5,600 was missing from her
H H
parents’ bedroom; and one mobile phone valued at around HK$13,100 was
I missing from the living room. The defendant’s left middle fingerprint was I
found on the wall tile near the toilet window of the house.
J J
K 9. On the same day at around 5:40 am, the police conducted K
observations in the vicinity of Ms Wong’s house and spotted the defendant
L L
boarding a taxi. The police intercepted the taxi and conducted a search on
M the defendant. Upon that search, cash of HK$3,187 was found in his left M
front trouser pocket and two torches were found in his right back trouser
N N
pocket. The defendant was arrested. Under caution, the defendant
O admitted that he stole the cash and that he illegally came to Hong Kong. O
The travel records of the defendant revealed no movement record to Hong
P P
Kong between 1 May 2020 and 1 October 2020.
Q Q
CAUTIONED INTERVIEWS
R R
S 10. A total of 11 video-recorded cautioned interviews and 1 S
record of interview were conducted with the defendant.
T T
U U
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A A
B B
11. For Charge 2, the defendant said that an unknown male took
C him to a house on 23 June 2020. The door of the house was not locked. C
The two of them entered the house with intent to steal but he left without
D D
stealing anything. He was not sure if the unknown male had taken a pair
E of shoes. He confirmed the relevant CCTV captured his images. E
F F
12. For Charge 3, the defendant said that an unknown male took
G him to a village house on 10 July 2020. He opened the glass door of the G
house for the unknown male who then entered the house to steal. He waited
H H
outside as a lookout. The unknown male promised to pay him HK$3,000
I as a reward. He confirmed the relevant CCTV captured his images. I
J J
13. For Charge 4, the defendant said that he could not recall the
K exact premises that he had burgled. K
L L
14. For Charge 5, the defendant said that an unknown male took
M him to a village on 26 September 2020. They planned to steal something M
and wandered around the village. After a while, the unknown male entered
N N
a house for around 30 minutes. The defendant stayed outside acting as a
O lookout. He was not sure if the unknown male had stolen anything from O
the house. He confirmed the relevant CCTV captured his images.
P P
Q 15. For Charge 8, the defendant said that an unknown male took Q
him to a village on 30 September 2020. As they both did not have money,
R R
the unknown male suggested that they go stealing. At first, the unknown
S male entered the house concerned and he stayed outside to act as a lookout. S
After the unknown male had come out from the house, the defendant
T T
climbed into it. He checked the wallet on the table and the two bags on the
U U
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A A
B B
sofa in the living room and found no money to steal. He then left the house
C and asked the unknown if he had taken any money. The unknown male C
handed over to him HK$2,000. When he left the house, he saw the police
D D
and therefore he boarded the taxi. Part of the money seized from him upon
E arrest was the money that the unknown male gave him. E
F F
16. For Charge 9, the defendant said that he entered Hong Kong
G from Shenzhen illegally by taking a fishing boat at least twice in the past. G
He could not be sure of the exact dates when he landed Hong Kong.
H H
I CRIMINAL RECORD I
J J
17. The defendant has a clear record.
K K
THE DEFENDANT’S BACKGROUND AND MITIGATION
L L
M 18. Counsel submitted that the defendant aged 45, married with a M
9-year-old son. Both the defendant and his wife worked as a casual worker
N N
earning RMB2,500 and RMB1,500 per month respectively in mainland
O China. The defendant’s father was diagnosed to be suffering from lung O
cancer in about 2019. Since then, the family had to shoulder the medical
P P
expenses of about RMB30,000 per month. The family had used up the
Q savings and had to borrow money from friends and relatives. The Q
defendant had also owed a bank loan in the sum of RMB60,000. In 2020,
R R
the family was in a difficult situation. A friend of the defendant claimed
S that he could earn higher salary from employment in Hong Kong and the S
friend would arrange a job for him in Hong Kong. In order to earn more
T T
money to support the family, the defendant paid to the friend a sum of
U U
V V
-8-
A A
B B
around RMB600 who then arranged for him to come to Hong Kong.
C However, upon arrival in Hong Kong, the friend had failed to arrange any C
such job. In the circumstances, the defendant wrongfully committed the
D D
offences.
E E
19. Counsel submitted that the defendant pleaded guilty to the
F F
charges. He was co-operative to the police and made frank admissions
G during investigation. He was remorseful about his wrongdoing. The G
defendant stressed that it was not his initial intention or plan to come to
H H
Hong Kong to commit the offences.
I I
20. Counsel further submitted that the defendant is very worried
J J
about his family, particularly his father. He wished that he could return to
K mainland China as soon as possible so that he could take care of his family. K
He promises that he would never commit offences again. While the present
L L
offences involve multiple premises committed on different dates and
M sometimes with another person, the defendant is more inclined to being an M
opportunist. The total value of the items and properties lost is HK$88,200
N N
and RMB10,700. It is not at the higher end of similar cases. The defendant
O would like to pay compensation to the victims in the Burglary charges in O
the sum of HK$3,187 that was seized from him upon arrest.
P P
Q CONSIDERATION Q
R R
21. In sentencing, I have born in mind the facts of the case, the
S background information of the defendant, all the matters urged upon me by S
counsel and the cases cited in mitigation by counsel and drawn to my
T T
attention by the prosecution, namely, HKSAR v Fan Kit Hung [2009] 6
U U
V V
-9-
A A
B B
HKC 312, The Queen v So Man King HCMA 408/1988, 香港特別行政區
C 訴 李 國 威 DCCC 644/2019, 香 港 特 別 行 政 區 訴 梁 元 申 DCCC C
186/2018 and HKSAR v Cheng Chi Wai 608/2014, AG v Lui Kam Chi
D D
CAAR 1/1993 and R v Wong Man CAAR 372/1992.
E E
Charges 2, 3, 4, 5 and 8 - Burglary offences
F F
G 22. The offences were committed at domestic premises in G
different areas including Sai Kung, Yuen Long, Tin Shui Wai and Tai Po.
H H
The property the defendant stole were as set out in Charges 2, 3, 4, 5 and
I I
8. The total value of the stolen property is HK$88,200 and RMB10,700.
J
A door was broken and the repair cost for that is HK$2,000. J
K K
23. It was held in Lui Kam Chi that three years’ imprisonment is
L
in general the appropriate starting point for a single offence of burglary of L
domestic premises committed by a first offender in circumstances
M M
unattended by particular aggravation or mitigation.
N N
24. In the present case, entry was gained usually by opening doors,
O O
on most occasions by means of prizing. Value of the stolen properties
P varies from HK$1,000 to HK$30,000. I do not consider there are factors P
significant enough to distinguish between the cases to an extent that
Q Q
different starting points should be adopted for a particular charge.
R R
25. I adopt a starting point of 3 years for each of the burglary
S S
charges.
T T
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A A
B B
26. The offences were committed in the middle of the night where
C occupiers were reasonably expected to be present. In one case the female C
occupier of the premises was woken up by footsteps and saw the defendant
D D
leaving her bedroom and heard ransacking sound in other bedrooms.
E E
27. In HKSAR v Tong Fuk Sing [1999] 3 HKC 332, Stuart-Moore
F F
VP recognized it as an aggravating feature if the burglary was committed
G in the early hours or the morning at a time when the house was occupied G
and where anyone would clearly have expected it to be occupied.
H H
I 28. The conduct of the defendant in each burglary case must have I
caused much distress to the families of the premises, more so in Charge 8.
J J
I can only imagine the shock and horror of the finding a total stranger in
K one’s bedroom when one wakes up in the middle of the night. In light of K
this aggravating feature, I enhance the starting point by 6 months to 3 years
L L
and 6 months.
M M
29. The fact that the defendant committed Charges 2, 3, 5 and 8
N N
with another unknown person aggravated the seriousness of these charges.
O I further enhance the starting point by 3 months to 3 years and 9 months O
for these offences on this basis.
P P
Q 30. For these reasons, I adopt an ultimate starting point of 3 years Q
and 9 months for each of Charges 2, 3, 5 and 8 and 3 years and 6 months
R R
for Charge 4.
S S
31. The defendant pleaded guilty to these offences. He is entitled
T T
to a full one-third discount for this reason. I do not consider there is any
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A A
B B
other factor which justifies any further discount. I recognize that the
C defendant made frank admissions to the police on all these charges during C
investigation, but his fingerprint or palm print was found in 4 out of the 5
D D
offences and his images were captured by the relevant CCTV on 3
E occasions. It cannot be said that the crime has only come to light as a result E
of the admission of the defendant. Economic pressure is not recognized as
F F
a mitigating factor.
G G
32. I note that the defendant offers to pay compensation and that
H H
can be taken out from the money seized from him upon arrest. Taking into
I account that the total sum lost by the victims is over HK$100,000, I find I
myself unable to give him any credit for his offer to pay compensation of
J J
HK$3,187. Also, I decided not to order compensation without prejudice
K the victims’ right to civil claims. K
L L
33. Apart from the guilty pleas, there is no other mitigating factor
M that can further reduce the sentences. M
N N
34. Giving the defendant full credit for his pleas of guilty, he is
O sentenced to 30 months’ imprisonment for each of Charges 2, 3, 5 and 8 O
and 28 months’ imprisonment for Charge 4.
P P
Q Charge 9 – Illegal remaining Q
R R
35. In relation to Charge 9, the established tariff for sentencing a
S person who remained in Hong Kong having entered unlawfully is that of S
15 months’ imprisonment on a plea of guilty (So Man King and Others).
T T
U U
V V
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A A
B B
This is the first time for the defendant to commit this offence. I adopt a
C starting point so that a sentence of 15 months after plea would result. C
D D
SENTENCES
E E
36. So the sentences at present will be as follows:-
F F
G Charge 2: 30 months’ imprisonment; G
Charge 3: 30 months’ imprisonment;
H H
Charge 4: 28 months’ imprisonment;
I Charge 5: 30 months’ imprisonment; I
Charge 8: 30 months’ imprisonment; and
J J
Charge 9: 15 months’ imprisonment.
K K
TOTALITY
L L
M 37. These offences were all separate and distinct offending. The M
defendant committed the burglary offences over a period of about 3 months
N N
while being illegally remaining in Hong Kong. Theoretically the sentences
O could all be imposed consecutively. However, wholly consecutive O
sentence will be unduly long.
P P
Q 38. In regards to burglary offences, in HKSAR v Xie Guohong Q
CACC 384/2003, the defendant pleaded guilty to four counts of burglary
R R
of non-domestic premises committed over a period of two months. The
S Court of Appeal held that an overall starting point of 6 years was S
appropriate.
T T
U U
V V
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A A
B B
39. In HKSAR v Lau Bing CACC 138/2008, the appellant
C committed five domestic burglaries in four years, stealing properties of C
large value. He pleaded guilty. The Court of Appeal agreed that the
D D
totality of 5 years and 4 months’ imprisonment for these charges was not
E manifestly excessive. E
F F
40. In both of these cases, the sentences were arrived at on the
G basis of the usual starting point applicable to a burglary offence. G
H H
41. In the present case, aggravating features are identified. In all
I the circumstances, as far as the burglary charges are concerned, having I
regard to totality, I am of the view that a notional overall starting point of
J J
63 months is sufficient to reflect the culpability of the defendant. The total
K sentence for the burglary charges, having taken into account full one-third K
discount for the defendant’s guilty pleas should therefore be 42 months’
L L
imprisonment. To achieve that, I order 3 months of the sentence of each
M of Charges 3, 4, 5 and 8 to run consecutively to Charge 2, the balance M
concurrent, making a subtotal of 42 months’ imprisonment for Charges 2,
N N
3, 4, 5 and 8.
O O
42. Charge 9 increased the culpability of the defendant. I am of
P P
the view that a proper overall sentence of 48 months would adequately
Q reflect the overall criminality of all six offences. To achieve that, I order Q
6 months of the sentence of Charge 9 to run consecutively to the aggregate
R R
of the sentences for the five Burglary charges, the balance concurrent,
S making a total of 48 months. S
T T
U U
V V
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A A
B B
43. In summary, the defendant has to serve a total sentence of 48
C months’ imprisonment. C
D D
E E
F F
( Veronica Heung )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
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S S
T T
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A A
B B
DCCC 324/2021
C [2021] HKDC 1650 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 324 OF 2021
F F
G ------------------------------------ G
HKSAR
H H
v
I WEI XIUQUE I
------------------------------------
J J
K Before: Deputy District Judge Veronica Heung K
Date: 29 December 2021 at West Kowloon Magistrates’ Courts
L L
Present: Ms Lee W Y Susanna, Counsel on Fiat, for HKSAR
M Mr Lau Hon Wang, instructed by Patrick Chu, Conti Wong M
Lawyers LLP, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: [1] - [5], [7] & [8] Burglary（入屋犯法罪） O
P
[6] Attempted burglary（企圖入屋犯法罪） P
[9] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong（在香港非法入境後未得入境事務處處長授 R
權而留在香港）
S S
T T
U U
V V
-2-
A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. The defendant faces a total of nine charges, eight of which are E
Burglary, Charges 1 to 8, and one is Remaining in Hong Kong without the
F F
authority of Director of Immigration after having landed unlawfully in
G Hong Kong, Charge 9. G
H H
2. As a result of plea bargaining, the defendant pleaded guilty to
I Charges 2, 3, 4, 5 and 8, contrary to section 11(1)(b) and (4) of the Theft I
Ordinance, Cap 210, and Charge 9, contrary to section 38(1)(b) of the
J J
Immigration Ordinance, Cap 115. Full details of the offences are set out
K in the facts admitted by the defendant. The defendant was convicted of all K
these six charges accordingly.
L L
M 3. Upon application by the prosecution, I ordered Charges 1, 6 M
and 7 be left in the court file and not to be proceeded against defendant
N N
without leave of court.
O O
FACTS
P P
Q Q
Charge 2
R R
4. Chan Sau Kam lived in a village house in Tai Po Tsai, Sai
S S
Kung. On 22 June 2020 at around 10:05 pm, Ms Chan locked the iron
T
grille of her house and went to bed. On 23 June 2020, having heard that T
another house in Tai Po Tsai had been burgled in the small hours earlier
U U
V V
-3-
A A
B B
that day, Ms Chan reviewed the CCTV installed in her house which showed
C on 23 June 2020 at 3:48 am, the defendant and an unknown male entered C
her house through the iron grille. The defendant went upstairs and the
D D
unknown male stayed at the entrance area. The unknown male took a pair
E of sneakers from the shoe rack and left at 3:59 am. The defendant also left E
the house at 4:03 am. Upon subsequent checking, Ms Chan noticed that a
F F
pair of sneakers valued at around HK$1,000 was missing from the shoe
G rack. G
H H
Charge 3
I I
5. Chan Wing Wah lived in a village house at Block 29, Wah On
J J
Villa in San Tin, Yuen Long. On 10 July 2020 at around 12:00 am, before
K going to bed, Mr Chan had locked the mosquito screen doors installed in K
the garden and the main entrance of his house. At around 7:00 am, Mr
L L
Chan woke up and noticed that both mosquito screen doors were prized
M open. Upon checking, Mr Chan discovered that cash of HK$13,000 and M
RMB700 was missing from a wallet that he placed in his bedroom. CCTV
N N
installed nearby captured that at 3:25 am, the defendant and an unknown
O male wandered around near Block 26. At 3:29 am, the defendant walked O
towards Block 29 and at 3:32 am, the unknown male followed the
P P
defendant. A print of the defendant’s left palm was found on a glass door
Q at the entrance of the house. Q
R R
Charge 4
S S
6. Lui Kam Cho was the owner of a village house in Tsz Tong
T T
Tsuen, Tai Po. Mr Lui had migrated to another country in 2019. His
U U
V V
-4-
A A
B B
relative, Mr Hui was responsible for cleaning and managing the house. On
C 23 September 2020, Mr Hui’s wife entered the house and found an opened C
can of Coke on the table in the living room. Feeling suspicious, she
D D
notified Mr Hui who then came to the house. Mr Hui noticed signs of
E ransacking in two bedrooms. The wardrobe of the master bedroom was E
prized open. RMB10,000 was found missing from the wardrobe in the
F F
master bedroom and two camera lens valued at around HK$14,000 in total
G were missing from the guest bedroom. A print of the defendant’s left G
middle finger was found on the drawer of the wardrobe. Mr Hui last
H H
entered the house on 1 September 2020 and did not observe any sign of
I ransacking. I
J J
Charge 5
K K
7. Hung Chuen Sung lived in a village house situated in Wai Tau
L L
Tsuen, Tai Po. On 26 September 2020 at around 1:00 am, Mr Hung locked
M the doors and windows of the house. Before going to bed, Mr Hung also M
checked that a watch and cash of HK$30,000 were placed on a table inside
N N
his bedroom. On the same day at around 8:00 am, Mr Hung noticed that
O the main door of the house was prized open. Upon checking, his watch O
valued at around HK$7,000 and cash of HK$30,000 were missing from his
P P
bedroom. The cost of repairing the main door was HK$2,000. CCTV of
Q the next door neighbour captured that at 5:10 am, the defendant wandered Q
outside Mr Hung’s house. At 5:12 am, the defendant walked towards the
R R
entrance of Mr Hung’s house. At 5:19 am, an unknown male walked away
S from Mr Hung’s house. The defendant’s right ring fingerprint was found S
on the handle of Mr Hung’s bedroom.
T T
U U
V V
-5-
A A
B B
Charges 8 and 9
C C
8. Wong Sze Ki lived in “THE HOME RESORT” in Sha Kong
D D
Wai, Tin Shui Wai. On 30 September 2020 at around 3:30 am, Ms Wong
E was awakened by footsteps and saw a person leaving her bedroom. Ms E
Wong stayed in her bed and subsequently heard noises in her parents’
F F
bedroom and in the living room. Upon checking, Ms Wong confirmed that
G cash of HK$500 was missing from the storage room; cash of HK$4,000 G
was missing from her bedroom; cash of HK$5,600 was missing from her
H H
parents’ bedroom; and one mobile phone valued at around HK$13,100 was
I missing from the living room. The defendant’s left middle fingerprint was I
found on the wall tile near the toilet window of the house.
J J
K 9. On the same day at around 5:40 am, the police conducted K
observations in the vicinity of Ms Wong’s house and spotted the defendant
L L
boarding a taxi. The police intercepted the taxi and conducted a search on
M the defendant. Upon that search, cash of HK$3,187 was found in his left M
front trouser pocket and two torches were found in his right back trouser
N N
pocket. The defendant was arrested. Under caution, the defendant
O admitted that he stole the cash and that he illegally came to Hong Kong. O
The travel records of the defendant revealed no movement record to Hong
P P
Kong between 1 May 2020 and 1 October 2020.
Q Q
CAUTIONED INTERVIEWS
R R
S 10. A total of 11 video-recorded cautioned interviews and 1 S
record of interview were conducted with the defendant.
T T
U U
V V
-6-
A A
B B
11. For Charge 2, the defendant said that an unknown male took
C him to a house on 23 June 2020. The door of the house was not locked. C
The two of them entered the house with intent to steal but he left without
D D
stealing anything. He was not sure if the unknown male had taken a pair
E of shoes. He confirmed the relevant CCTV captured his images. E
F F
12. For Charge 3, the defendant said that an unknown male took
G him to a village house on 10 July 2020. He opened the glass door of the G
house for the unknown male who then entered the house to steal. He waited
H H
outside as a lookout. The unknown male promised to pay him HK$3,000
I as a reward. He confirmed the relevant CCTV captured his images. I
J J
13. For Charge 4, the defendant said that he could not recall the
K exact premises that he had burgled. K
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14. For Charge 5, the defendant said that an unknown male took
M him to a village on 26 September 2020. They planned to steal something M
and wandered around the village. After a while, the unknown male entered
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a house for around 30 minutes. The defendant stayed outside acting as a
O lookout. He was not sure if the unknown male had stolen anything from O
the house. He confirmed the relevant CCTV captured his images.
P P
Q 15. For Charge 8, the defendant said that an unknown male took Q
him to a village on 30 September 2020. As they both did not have money,
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the unknown male suggested that they go stealing. At first, the unknown
S male entered the house concerned and he stayed outside to act as a lookout. S
After the unknown male had come out from the house, the defendant
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climbed into it. He checked the wallet on the table and the two bags on the
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sofa in the living room and found no money to steal. He then left the house
C and asked the unknown if he had taken any money. The unknown male C
handed over to him HK$2,000. When he left the house, he saw the police
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and therefore he boarded the taxi. Part of the money seized from him upon
E arrest was the money that the unknown male gave him. E
F F
16. For Charge 9, the defendant said that he entered Hong Kong
G from Shenzhen illegally by taking a fishing boat at least twice in the past. G
He could not be sure of the exact dates when he landed Hong Kong.
H H
I CRIMINAL RECORD I
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17. The defendant has a clear record.
K K
THE DEFENDANT’S BACKGROUND AND MITIGATION
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M 18. Counsel submitted that the defendant aged 45, married with a M
9-year-old son. Both the defendant and his wife worked as a casual worker
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earning RMB2,500 and RMB1,500 per month respectively in mainland
O China. The defendant’s father was diagnosed to be suffering from lung O
cancer in about 2019. Since then, the family had to shoulder the medical
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expenses of about RMB30,000 per month. The family had used up the
Q savings and had to borrow money from friends and relatives. The Q
defendant had also owed a bank loan in the sum of RMB60,000. In 2020,
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the family was in a difficult situation. A friend of the defendant claimed
S that he could earn higher salary from employment in Hong Kong and the S
friend would arrange a job for him in Hong Kong. In order to earn more
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money to support the family, the defendant paid to the friend a sum of
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around RMB600 who then arranged for him to come to Hong Kong.
C However, upon arrival in Hong Kong, the friend had failed to arrange any C
such job. In the circumstances, the defendant wrongfully committed the
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offences.
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19. Counsel submitted that the defendant pleaded guilty to the
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charges. He was co-operative to the police and made frank admissions
G during investigation. He was remorseful about his wrongdoing. The G
defendant stressed that it was not his initial intention or plan to come to
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Hong Kong to commit the offences.
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20. Counsel further submitted that the defendant is very worried
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about his family, particularly his father. He wished that he could return to
K mainland China as soon as possible so that he could take care of his family. K
He promises that he would never commit offences again. While the present
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offences involve multiple premises committed on different dates and
M sometimes with another person, the defendant is more inclined to being an M
opportunist. The total value of the items and properties lost is HK$88,200
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and RMB10,700. It is not at the higher end of similar cases. The defendant
O would like to pay compensation to the victims in the Burglary charges in O
the sum of HK$3,187 that was seized from him upon arrest.
P P
Q CONSIDERATION Q
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21. In sentencing, I have born in mind the facts of the case, the
S background information of the defendant, all the matters urged upon me by S
counsel and the cases cited in mitigation by counsel and drawn to my
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attention by the prosecution, namely, HKSAR v Fan Kit Hung [2009] 6
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HKC 312, The Queen v So Man King HCMA 408/1988, 香港特別行政區
C 訴 李 國 威 DCCC 644/2019, 香 港 特 別 行 政 區 訴 梁 元 申 DCCC C
186/2018 and HKSAR v Cheng Chi Wai 608/2014, AG v Lui Kam Chi
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CAAR 1/1993 and R v Wong Man CAAR 372/1992.
E E
Charges 2, 3, 4, 5 and 8 - Burglary offences
F F
G 22. The offences were committed at domestic premises in G
different areas including Sai Kung, Yuen Long, Tin Shui Wai and Tai Po.
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The property the defendant stole were as set out in Charges 2, 3, 4, 5 and
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8. The total value of the stolen property is HK$88,200 and RMB10,700.
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A door was broken and the repair cost for that is HK$2,000. J
K K
23. It was held in Lui Kam Chi that three years’ imprisonment is
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in general the appropriate starting point for a single offence of burglary of L
domestic premises committed by a first offender in circumstances
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unattended by particular aggravation or mitigation.
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24. In the present case, entry was gained usually by opening doors,
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on most occasions by means of prizing. Value of the stolen properties
P varies from HK$1,000 to HK$30,000. I do not consider there are factors P
significant enough to distinguish between the cases to an extent that
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different starting points should be adopted for a particular charge.
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25. I adopt a starting point of 3 years for each of the burglary
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charges.
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26. The offences were committed in the middle of the night where
C occupiers were reasonably expected to be present. In one case the female C
occupier of the premises was woken up by footsteps and saw the defendant
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leaving her bedroom and heard ransacking sound in other bedrooms.
E E
27. In HKSAR v Tong Fuk Sing [1999] 3 HKC 332, Stuart-Moore
F F
VP recognized it as an aggravating feature if the burglary was committed
G in the early hours or the morning at a time when the house was occupied G
and where anyone would clearly have expected it to be occupied.
H H
I 28. The conduct of the defendant in each burglary case must have I
caused much distress to the families of the premises, more so in Charge 8.
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I can only imagine the shock and horror of the finding a total stranger in
K one’s bedroom when one wakes up in the middle of the night. In light of K
this aggravating feature, I enhance the starting point by 6 months to 3 years
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and 6 months.
M M
29. The fact that the defendant committed Charges 2, 3, 5 and 8
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with another unknown person aggravated the seriousness of these charges.
O I further enhance the starting point by 3 months to 3 years and 9 months O
for these offences on this basis.
P P
Q 30. For these reasons, I adopt an ultimate starting point of 3 years Q
and 9 months for each of Charges 2, 3, 5 and 8 and 3 years and 6 months
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for Charge 4.
S S
31. The defendant pleaded guilty to these offences. He is entitled
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to a full one-third discount for this reason. I do not consider there is any
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other factor which justifies any further discount. I recognize that the
C defendant made frank admissions to the police on all these charges during C
investigation, but his fingerprint or palm print was found in 4 out of the 5
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offences and his images were captured by the relevant CCTV on 3
E occasions. It cannot be said that the crime has only come to light as a result E
of the admission of the defendant. Economic pressure is not recognized as
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a mitigating factor.
G G
32. I note that the defendant offers to pay compensation and that
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can be taken out from the money seized from him upon arrest. Taking into
I account that the total sum lost by the victims is over HK$100,000, I find I
myself unable to give him any credit for his offer to pay compensation of
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HK$3,187. Also, I decided not to order compensation without prejudice
K the victims’ right to civil claims. K
L L
33. Apart from the guilty pleas, there is no other mitigating factor
M that can further reduce the sentences. M
N N
34. Giving the defendant full credit for his pleas of guilty, he is
O sentenced to 30 months’ imprisonment for each of Charges 2, 3, 5 and 8 O
and 28 months’ imprisonment for Charge 4.
P P
Q Charge 9 – Illegal remaining Q
R R
35. In relation to Charge 9, the established tariff for sentencing a
S person who remained in Hong Kong having entered unlawfully is that of S
15 months’ imprisonment on a plea of guilty (So Man King and Others).
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This is the first time for the defendant to commit this offence. I adopt a
C starting point so that a sentence of 15 months after plea would result. C
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SENTENCES
E E
36. So the sentences at present will be as follows:-
F F
G Charge 2: 30 months’ imprisonment; G
Charge 3: 30 months’ imprisonment;
H H
Charge 4: 28 months’ imprisonment;
I Charge 5: 30 months’ imprisonment; I
Charge 8: 30 months’ imprisonment; and
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Charge 9: 15 months’ imprisonment.
K K
TOTALITY
L L
M 37. These offences were all separate and distinct offending. The M
defendant committed the burglary offences over a period of about 3 months
N N
while being illegally remaining in Hong Kong. Theoretically the sentences
O could all be imposed consecutively. However, wholly consecutive O
sentence will be unduly long.
P P
Q 38. In regards to burglary offences, in HKSAR v Xie Guohong Q
CACC 384/2003, the defendant pleaded guilty to four counts of burglary
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of non-domestic premises committed over a period of two months. The
S Court of Appeal held that an overall starting point of 6 years was S
appropriate.
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39. In HKSAR v Lau Bing CACC 138/2008, the appellant
C committed five domestic burglaries in four years, stealing properties of C
large value. He pleaded guilty. The Court of Appeal agreed that the
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totality of 5 years and 4 months’ imprisonment for these charges was not
E manifestly excessive. E
F F
40. In both of these cases, the sentences were arrived at on the
G basis of the usual starting point applicable to a burglary offence. G
H H
41. In the present case, aggravating features are identified. In all
I the circumstances, as far as the burglary charges are concerned, having I
regard to totality, I am of the view that a notional overall starting point of
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63 months is sufficient to reflect the culpability of the defendant. The total
K sentence for the burglary charges, having taken into account full one-third K
discount for the defendant’s guilty pleas should therefore be 42 months’
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imprisonment. To achieve that, I order 3 months of the sentence of each
M of Charges 3, 4, 5 and 8 to run consecutively to Charge 2, the balance M
concurrent, making a subtotal of 42 months’ imprisonment for Charges 2,
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3, 4, 5 and 8.
O O
42. Charge 9 increased the culpability of the defendant. I am of
P P
the view that a proper overall sentence of 48 months would adequately
Q reflect the overall criminality of all six offences. To achieve that, I order Q
6 months of the sentence of Charge 9 to run consecutively to the aggregate
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of the sentences for the five Burglary charges, the balance concurrent,
S making a total of 48 months. S
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43. In summary, the defendant has to serve a total sentence of 48
C months’ imprisonment. C
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E E
F F
( Veronica Heung )
Deputy District Judge
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