HKSAR v. LIU JIANAN

DCCC 853/2023

[2024] HKDC 708

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 853 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210 on his own plea and agreement to Summary of Facts.

Facts

2.  On 30 June 2023, at around 3:55 am, police spotted the defendant acting suspiciously outside Shop B, Ground Floor, Nos 25-27 of Argyle Street, Mongkok, Kowloon (“L1”), a store under renovation.  The defendant subsequently entered L1 and police waited for him outside. 

3.  About 3 minutes later, the defendant left L1 and police intercepted him.  Upon police inquiry, he claimed that he managed to figure out the passcode of the combination lock to L1.  Under caution, he stated that he entered the shop in order to find something valuable to steal, but he did not actually steal anything.  Upon body search, the police noticed that he was holding the combination lock to L1 and seized the lock from him.

4.  The defendant was arrested for burglary.  Under caution, he reiterated what he said before.  He again confirmed his version in the video-recorded interview conducted on him later on the same day. 

5.  At the material time, he entered L1 as a trespasser with intent to steal therein.

Criminal Record

6.  The defendant has 2 similar convictions in year 2021 and 2022.

Mitigation

7.  The defendant is now aged 28.  He came to Hong Kong in 2008 and has received education up to Form 2 level in Hong Kong.  It was said that he lived alone in a rented room, and before arrest, he used to be an assistant warehouse keeper earning $15,000 per month. 

8.  It was said that the defendant committed the present offence out of momentary greed.  Defence counsel said that the door lock to the shop was a very simple 4-digit padlock, and that the defendant opened the lock by chance, and so he entered the shop.  It was said that he stayed there only for one to two minutes as he did not find anything valuable.

9.  Defence counsel submitted that the defendant was full and frank when police intercepted him, and that he admitted everything upon interception.

10.  Defence counsel conceded that for non-domestic burglary, the usual sentencing starting point was one of 30 months’ imprisonment.  He suggested that upon the circumstances and the background of the present offence, the court should consider the same as a “walk-in and opportunistic burglary”, and that the court should adopt a sentencing starting point of 18 months’ imprisonment.  He referred this court to 2 cases: HKSAR v Cheung To Ming [2006] 2 HKLRD 259, and HKSAR v Kwok Wing Kam, CACC 394/2010.

11.  Defence counsel accepted that as the defendant has 2 previous similar convictions, it would be an aggravating feature in sentencing.  He also asked this court to give the defendant usual one-third sentencing discount upon his guilty plea and to enhance the sentencing starting point modestly. 

12.  He also handed to this court the mitigation letter from the defendant which says that the defendant is now deeply remorseful, and he would ask this court for leniency so that he could have an early release from prison and to look after his mother. 

Discussion

13.  Before sentencing, this court has carefully considered all that was said on behalf of the defendant as well as the letter from the defendant. 

14.  As conceded by defence counsel, it is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating reasons is that of 2½ years’ imprisonment (HKSAR v Sim Ka Wing, CACC  450/2000).

15.  In this case, the shop was fitted with a 4-digit combination lock.  This court has the chance to inspect the lock in court, and the same looks decent and new.  It would not be an easy task to open the combination lock.  This is, therefore, not a case of “walk-in and opportunistic burglary”.

16.  It is true that nothing was stolen, and that the defendant managed to open the lock and gained access to the shop in the very short time interval. In the circumstances of this case, the court is willing to adopt a sentencing starting point of 27 months’ imprisonment. 

17.  The defendant has 2 previous similar convictions in year 2021 and 2022. He was just last released from prison on 12 July 2022, and he committed the present offence within 1 year after his release.  He is clearly a persistent offender, which amounts to an aggravating feature in sentencing.  The appropriate sentencing starting point should be enhanced by 3 months to 30 months’ imprisonment.

18.  In this case, the most valid and useful mitigating factor is the defendant’s own guilty plea, for which he is entitled to full one-third sentencing discount.  Remorse of the defendant, if any, is subsumed in the one-third sentencing discount. 

19.  The defendant is therefore sentenced to 20 months’ imprisonment.