COURT: Defendant, you pleaded guilty before a magistrate to three charges of burglary. Today you have confirmed your guilty pleas before me and stand convicted of the three charges.
In sentencing I take into account the whole circumstances of the case including its nature and facts, your personal background and mitigation put forward on your behalf.
The facts of the case may be summarised as follows. All the incidents involved burglary at non-residential premises.
In Charge 1, a 3 feet times 3 feet hole was dug into the wall that separated a seafood wholesale company and the next door shop which was vacant. Four bags of sharks’ fins worth more than $110,000 were stolen from the seafood wholesale company.
After a report had been made, the police found items including an aluminium ladder, two metal hoods and some milk boxes. The police lifted fingerprints from certain items left in the next door shop which were found to match your fingerprints.
You were eventually arrested. Under caution you admitted the offence and said you were invited by a friend to come to Hong Kong to join in the crime. In a subsequent interview you said there were altogether three burglars, one of them known as “Xiaolin”.
When you entered the vacant shop you opened the door and let the others in. You, the group, then broke a wall with wooden poles and a hydraulic jack. Through the hole you entered the burgled shop. You were the person who climbed the ladder and covered the alarm with a milk box. The group left taking only four bags since the alarm was triggered. There were about 100 bags of sharks’ fins in the shop.
This offence took place on 27 August 2010. You entered Hong Kong four days before the incident and left three days afterwards.
It may then be convenient to mention the case of Charge 3 first. In this case a shop which sold expensive watches was burgled. It took place during the Lunar New Year holiday when the shop was closed. The shop was ransacked and there was a hole in the steel door of a strong room where luxurious watches and jewellery were stored.
There was also a 2 feet times 2 feet hole in the wall which separated the burgled shop and the next door shop. A total of 520 luxurious watches of an estimated total value of about $20 million, HK$260,000 and RMB 82,000 in cash and some personal jewellery items of an estimated value of about $1.8 million were stolen from the strong room. The total loss was about $22.75 million.
DNA extracted from a cigarette butt found inside the bucket on the mezzanine floor of the shop matches your DNA.
The case of Charge 2 concerns the next door shop involved in Charge 3. There were prise marks on the switch box of the roller shutter. $1,300 in cash, a DVD player, a set of computer and three suitcases were stolen. The total loss was about $3,500. There were some used distilled water bottles inside the shop. DNA extracted from a bottle matched your DNA.
On this occasion you stayed in Hong Kong for five days and left one day prior to the discovery of the offences.
You are a PRC citizen. I was told that you are 44 years of age. You have received primary education and have worked as a casual worker in a delivery company and a seafood wholesale company in the mainland. I was also told that you are married and living with your wife and two teenage children.
You are not a first-time offender. All the offences you have committed were immigration offences. In 1995 you were convicted of one charge of possession of forged Hong Kong identity card and one charge of unlawful remaining for which you were sentenced to a total of 15 months’ imprisonment. In 2001 you were convicted for breach of condition of stay and again in 2002. In 2003 you were convicted of making false statements to an Immigration officer.
All the offences were committed in commercial premises. It has been consistently held that for a single offence of such nature an immediate custodial sentence is appropriate and in normal circumstances a starting point of 2½ years should be considered.
However, the Court of Appeal said in HKSAR v Lui Cho Yiu, CACC 81/2004 that it is quite plain the usual starting point of 2½ years’ imprisonment for a burglary of commercial premises not only can but should be increased when such offences are carried out by those whose activities mark them out as professionals. Criminals in this category will usually be found to have targeted high-value goods having prepared and planned the offence in advance.
McMahon J also said in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.
Yeung JA, as he then was, said in HKSAR v Chan Wai Kai, CACC 81/2004, that the starting point can be adjusted upwards if there are aggravating circumstances such as the following:
“(1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment;
(2) the offence is committed by two or more people;
(3) the offence targets a substantial premises and involves substantial properties;
(4) the offender is a professional burglar and not just an opportunist;
(5) the offender has previous convictions, particularly previous convictions of a similar nature;
(6) the offender commits multiple offences.”
In HKSAR v Chan Kwok Choi, CACC 365/2002, the Court of Appeal held that:
“The degree of planning, the equipment used, the damage caused to gain entry, the damage to the machines and the value of the property stolen are factors to be taken into account.”
I find you a professional burglar. The offences were obviously premeditated, well‑planned and heavily equipped. You targeted substantial properties obviously with an intention to steal very valuable properties.
On the occasion of Charge 1 you committed the offence with two other persons. The value of the stolen property was substantial. In the case of Charge 3 the value of the stolen property was much more substantial. You have committed three offences on two different occasions in a span of six months. The inference from the days you stayed in Hong Kong is that you came to Hong Kong with the primary purpose of committing the offences.
The case of HKSAR v Lui Cho Yiu, which I mentioned earlier, involved burglaries of adjoining premises sharing a party wall which was broken into by using drilling equipment. The culprits were intent upon opening a safe. For these two charges the Court of Appeal held that a total sentence of 5 years with a sentence for the more serious charge being 4 years and 4 months in the light of all the aggravating factors would be appropriate. In that case the appellant had numerous previous convictions for stealing offences.
Having considered the whole circumstances I am of the view that a higher than usual starting point is justified and appropriate in the present case. For Charge 1, I adopt a starting point of 4 years; for Charge 2, 3 years; for Charge 3, 8½ years.
I adopt this high starting point for Charge 3 to take into account the relevant aggravating factors I have mentioned, in particular that you were so well equipped and that you were able not only to break a hole in the wall but also a whole in the strong room door. Besides, the value of the property stolen was in the region of $22 million. This must be reflected in the sentence.
In all the circumstances, I do not think that it was not by chance that you had stolen property of such a substantial property. It must have been a result of deliberate intent.
You are entitled to a one-third discount for your guilty pleas. Your counsel told me that you committed the offences under financial pressure. You are the sole breadwinner of the family. Your two parents are aged and not enjoying good health. Their medical reports were produced. Your two children are teenagers. These, however, are not justification for any further discount.
Having considered the whole circumstances of the case including what your counsel said on your behalf, stressing that you are now remorseful, I am of the view that one‑third is the extent of discount you are entitled to.
I therefore sentence you as follows: Charge 1, 2 years and 8 months; Charge 2, 2 years; Charge 3, 5 years and 8 months.
You have committed three offences in two incidents. Having regard to the totality principle and cases such as HKSAR v Fan Kit Hung, CACC 62/2009, in my judgment a notional starting point of 10 years is appropriate. In the light of the guilty pleas, the total sentence is one of 6 years and 8 months. To give effect to this, I order the sentences of Charge 2 and Charge 3 to run concurrently, with 12 months of the sentence of Charge 1 to run consecutively to the aggregated sentence of Charge 2 and Charge 3.
Defendant, please stand up. I sentence you to a total sentence of 6 years and 8 months for the three charges you stand convicted of.