HKSAR v. HE QISEN

HCCC 420/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 420 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant pleaded guilty to five charges of burglary in front of Magistrate June Cheung on 30 September 2016. A summary of the alleged facts upon the charges are based was read out in court and the defendant admitted to its contents. The defendant was then committed to the Court of First Instance for sentence.

The defendant has confirmed before me today his pleas of guilty and admission to the summary of facts.

The facts, as admitted by the defendant. The defendant is a Mainland resident and was previously known as He Ji. Movement records show that He Ji had left Hong Kong on 6 October 2006 and had not returned since. The present offences were committed by the defendant as He Qisen, which was the new name he had adopted after returning to China as He Ji.

All five burglaries involved the security alarm system of the burgled commercial premises being triggered. None of the stolen properties had been recovered. I have included a table listing out the relevant facts.

In relation to Charge 1, the date of the burglary was between 26 and 27 August 2010. Burgled premises was Score Rich Trading Company, a dried seafood shop. Damage to premises was a 3-feet-by-3-feet hole in wall shared with the adjacent vacant shop. Goods stolen were four bags of shark fin. Value of goods stolen was $115,732.50. Tools found at scene were a ladder, two metal hooks, two Styrofoam boxes used for interfering with the alarm sensors, and the number of total burglars was four.

In relation to Charge 2, August 16, Oriental Watch Company Limited, a luxury watch retailer. Glass door broken. 246 watches stolen worth $6,000,560($6,560,000?). Tools found were a hammer and a trolley. Number of total burglars: four.

Charge 3, December 15, 2013. Yaki Champion Boutique, a luxury watches, bags and accessories retailer. The roller-shutter was opened and the glass door of the shop smashed. Seven luxury watches, 64 handbags and other accessories were stolen, worth $4,841,950. Tools found were two hammers, gloves, two handheld LED lights, a screwdriver and a shopping trolley. Total number of burglars were four.

Charge 4, June 12, 2015. Brand Off Limited, a luxury bags, clothing, watches and accessories retailer. Door of the premises opened and a number of display shelves in the shop smashed. 44 handbags and a piece of cloth stolen, worth $2,545,960. A hammer was found. Total burglars were five.

Charge 5, January 8, 2016. Vogue Station, a luxury bags, watches and accessories retailer. Glass door of the shop was broken and a number of display shelves inside were smashed. 61 handbags and wallets and other accessories were stolen, worth $2,486,994. No tools were found. Total burglars were seven.

The total value of goods stolen was $16,550,636.50.

DNA materials were found and collected from a water bottle at the scene of Charge 1, from bloodstains found at various parts of the premises of Charge 2, and on the door in Charge 4. The DNA materials matched that of the defendant under his old name of He Ji.

Since the record showed He Ji had left Hong Kong and not returned since 2006, assistance from Mainland authorities was sought and it was discovered that the defendant had changed his name to “He Qisen”. Movement records show the defendant entering Hong Kong shortly - that is between one to four days - before the commission of the offences in Charges 2 to 5. There is no record of him entering Hong Kong lawfully when he committed the offence in Charge 1.

The defendant was arrested on 18 March 2016 for the offence in Charge 2 when he tried to enter Hong Kong as “He Qisen” at the airport.

The defendant’s admissions. The defendant said under caution that he was not the mastermind of the burglary and Ah Bing promised him $20,000 and told him to help smash the glass door of the shop.

At the subsequent cautioned interview, the defendant admitted to the commission of the five burglaries and gave the following details.

The burglary in Charge 1 was committed with three others. The defendant received $10,000 for his part. The defendant waited in a van for 30 minutes until he was summoned to enter a vacant shop. When inside, he saw a big hole in the wall leading to the burgled premises. The defendant removed three to four large nylon bags from the vacant shop and loaded them onto the van. The defendant received his reward in Shenzhen four days later.

The burglary in Charge 2 was again committed with three others. The defendant injured his arm when he used a hammer to smash the glass door of the premises, leaving blood behind. They entered the shop and put the watches into a number of bags and loaded them onto a light goods vehicle. The defendant returned to the Mainland alone. He later received $13,000 in Shenzhen for his part in the burglary.

The burglary in Charge 3 was committed with three others. The defendant and the person who invited him to join, Ah Bing, came to Hong Kong together two days prior to the commission of the offence. The door of the burgled premises had already been broken when the defendant arrived. There were a few big bags on the floor and the defendant helped put handbags into them and loaded them onto a van. The defendant received $25,000 for his part in the burglary one week later in Shenzhen.

The burglary in Charge 4 was committed with four others. The defendant came to Hong Kong one day before the commission of the burglary. He met up with an accomplice in Mong Kok. The door of the premises was already broken when he arrived. The defendant held a big bag while others smashed the display shelves, took the stolen property, and put them into the bag. The bag was then loaded into a waiting van. The defendant received $20,000 for his part in the burglary, about four to five days later in Shenzhen.

The burglary in Charge 5 was committed with six others. The defendant came to Hong Kong one day prior to the offence. He waited at the doorway of the rear entrance of the shopping mall while the others broke into the shop. They came back later, carrying large bags of stolen property. The defendant took one of the bags and loaded it onto a waiting van. The defendant left Hong Kong two or three days later. He received $20,000 for his part in the burglary around 10 days later.

Previous convictions. Defendant was convicted for one charge of burglary in the District Court and was sentenced to 20 months’ imprisonment on 12 June 2001. He was sentenced on the same day to 15 months’ consecutive imprisonment for remaining in Hong Kong without the authority of the Director of Immigration. The defendant was again convicted for burglary in the District Court and sentenced to 32 months’ imprisonment on 2 June 2005.

In mitigation, I heard that the defendant is 47, a Mainland resident educated up to Primary 3 level and was unemployed at the time of his arrest. He is divorced. His elder son lives with his ex-wife while his younger son lives with the defendant and his 85-year-old father.

The defendant put forward the following reasons for his commission of the offences.

As a result of an industrial accident, the defendant’s younger son suffered serious injuries to his brain. He is no longer mobile and required constant care. The medical expenses incurred went up to some RMB600,000. The defendant had exhausted his and his family’s savings and ended up borrowing RMB150,000 from loan sharks. His interest payment was RMB23,000 per month. Being a truck driver earning RMB3,000 each month, the defendant was unable to meet the payments. As a result, he had no choice but to accept the offer by one “Sun Gor”(?), “Brother Sun”, to go to Hong Kong to commit the burglary in Charge 2 for a monetary reward.

The pressure on the defendant to repay his debt continued. That was why he also accepted the next three offers to commit the offences in Charges 3, 4 and 5. The defendant, however, negotiated and refused to smash the glass door any more. He chose to act as lookout or just in helping to move the stolen goods.

Miss Lee, for the defendant, pointed out that he was not the mastermind in any of the burglaries. Miss Lee urged the court to grant a further discount in relation to Charges 3 and 5 for the defendant’s voluntary confession, without which the investigation of the two offences would have been much more difficult.

Miss Lee relied on the case of HKSAR v Hui Chi Tong, CACC 414/2007, in this regard. There, a further 2-month discount was granted for a voluntary confession for a sentence of 32 months’ imprisonment after plea. Miss Lee submitted that a similarly proportioned discount should be granted for Charges 3 and 5 in our present case.

Lastly, Miss Lee sought sympathy and leniency, bearing in mind the possibility of the defendant not being able to see his father again upon his release from prison. Miss Lee, however, very honestly reminded the court that there are ample authorities indicating that financial reasons, age and family background are not mitigating factors.

Sentencing cases. All five burglaries were committed against commercial premises, for which the usual starting point is 2½ years’ imprisonment. If there are serious aggravating circumstances, the usual starting point must be adjusted accordingly. The Court of Appeal in cases of HKSAR v Chan Wai Kai and HKSAR v Fan Kit Hung had identified such aggravating factors. Those relevant to our present case are set out later on in this reasons for sentence.

I was referred to the case of HKSAR v Gao Chuanglu. The appellant was one of the accomplices in Charge 1 of our present case. He was charged for the same burglary of Score Rich dried seafood shop on 27 August 2010. Mr Gao pleaded guilty to two other charges of burglary which were committed in February 2011, property to a total value of about 3,500 and 22.75 million dollars was stolen respectively. That would be Charge 2 and 3 in that case.

Deputy High Court Judge Mr Albert Wong (as he then was) adopted a starting point of 4 years’ imprisonment for Charge 1, 3 years’ imprisonment for Charge 2, and 8½ years’ imprisonment for Charge 3. Having regard to the principle of totality of sentence, the learned judge took a notional starting point of 10 years’ imprisonment, granted a one-third discount for the appellant’s guilty pleas, and determined that the appropriate total sentence was 6 years and 8 months’ imprisonment.

The main complaint of the appellant was the 8½ years’ imprisonment starting point for Charge 3. In relation to Charge 3, the appellant had entered a bookshop, dug holes in the wall between the shop and the watch-sellers next door, and stole $22.75 million worth of watches, jewellery and cash. The summary of facts was silent as to how those holes had been made, but the Court of Appeal deduced from the photos that powerful equipment such as oxyacetylene torch or drills with very hardened drill-bit tips were required to make some of the holes.

There, the appellant was 44 and a Mainland resident. He had a number of previous convictions in respect of Immigration offences, but none similar to burglary. The Court of Appeal considered the 8½ years’ imprisonment starting point for Charge 3 at the high end of the range, but was within the range of sentence appropriate to that charge. The court upheld the overall sentence of 6 years and 8 months’ imprisonment.

I was also referred to the High Court case of HKSAR v Chung Kin Wai. Mr Chung was one of the accomplices in Charge 2 of our present case, the Oriental Watch Company burglary, and was in that case charged for the same offence as the sole charge.

The learned trial judge Barnes J found the following aggravating factors present. The burglary was carefully planned and skilfully executed with the use of a heavy-duty hammer. The offence was committed with three others. The offence was targeted at a watch company in a hotel mall in Tsim Sha Tsui and involved over $6 million worth of watches. The defendant had previous convictions, although not similar to burglary. Substantial damage was done to the victimised premises in the course of the burglary.

The learned judge concluded that the appropriate sentence, after trial, would have been one of 5 years’ imprisonment. A full one-third discount was granted and Mr Chung was sentenced to 40 months’ imprisonment.

The third case I was referred to is HKSAR v Lu Yongbing & Liu Kei Wing. Mr Lu Yongbing was an accomplice in Charges 2 and 3 of our present case, respectively the Oriental Watch Company and the Yaki Champion Boutique burglaries. He was charged for the two offences in Counts 1 and 3 of that case.

The learned trial judge, also Barnes J, found that Mr Lu was a professional burglar who came to Hong Kong to commit the offences. He acted with others, targeted substantial shops involving very substantial properties - property worth over $6 million in Count 1 and $4 million in Count 3 were stolen. All the burglaries were well planned and executed. Heavy-duty hammers were used to smash the glass display windows to get to the property, causing substantial damage to the premises in all three counts. None of the property in Counts 1 and 3 were recovered.

After considering all the circumstances and aggravating factors, the learned judge adopted a starting point of 5½ years’ imprisonment for Count 1 and 4½ years’ imprisonment for Count 3.

A full one-third discount was granted for Mr Lu’s guilty pleas, resulting in sentences of 44 and 36 months for Counts 1 and 3 respectively. A further discount of 2 months was given in relation to Count 3 for Mr Lu’s voluntary confession. In consideration of the principle of totality, the learned judge was of the view that a notional starting point of 8½ years’ imprisonment is appropriate for all four counts, resulting in a total sentence of 66 months, after all discounts were applied.

Sentencing considerations. The maximum sentence on conviction upon indictment for an offence of burglary is that of 14 years’ imprisonment.

Aggravating circumstances. The following aggravating circumstances are present in the burglaries.

The commission of all five burglaries involved the defendant being recruited in the Mainland to come to Hong Kong to take part in the burglaries.

Despite the security alarms being triggered in each of the burglaries, none of the culprits were apprehended at scene, suggesting efficiency in the carrying out of the plans. Transportations were arranged for the removal of the anticipated large quantity of stolen goods. It is obvious that all the burglaries were carefully planned and skilfully executed.

Specific to Charge 1, from the photos, the hole on the wall of the vacant shop is a tiny square with a metal frame surrounding the opening. There are two hooks lying on top of some bricks, apparently removed from the wall. From the photos, the thickness of the brick wall is not unsubstantial. One can infer that considerable force must have been used to create the hole and the process would have taken some time if the hooks were the only tools used. In any event, the fact that those planning the robbery managed to find a vacant shop next to the burgled premises and opened a hole in the wall big enough for a person to go through suggests that the offence was carefully planned and skilfully executed.

All the burglaries were committed by two or more people.

The burglaries were all targeted towards substantial premises in which were stored property of substantial value.

Substantial damage was done to all five of the victimised premises in the course of the burglaries.

The defendant committed each of the five offences for a reward. I find the defendant a professional burglar and not just an opportunist. While I understand the possible motive behind the defendant agreeing to commit the offences was to repay his debts, I do not find that they would excuse the defendant of his culpability.

The defendant had committed multiple offences over an approximately five-year period.

Lastly, the defendant had entered Hong Kong shortly prior to the commission of the offences in Charges 2 to 5. He left either on the same day or the following day, after committing the offences. In relation to Charge 5, he left three days after committing the offence. I find that the defendant had come to Hong Kong to commit the offences. He abused the generosity granted to him for his entries. I find this an aggravating factor in relation to Charges 2 to 5.

Miss Lee suggested that the defendant would come to Hong Kong from time to time to purchase construction-related materials such as grilles and grinders, and that on each of the occasion of the five offences he was in Hong Kong for such reason.

I find that, even if that is true, it does not reduce the defendant’s culpability, because the main purpose of him coming to Hong Kong on those occasions was to commit the burglaries for the promised rewards so that he could repay his debts. The purchase of the tools were purely incidental.

I find the next one not an aggravating factor. The defendant has two previous convictions of a similar nature. They were, however, 15 to 11 years ago respectively. I do not take his previous similar convictions as an aggravating circumstance.

Sentence. In relation to Charge 1, taking into consideration all the circumstances of the commission of the offence as well as the sentence imposed on the accomplices, I find that an appropriate starting point after trial would be that of 4 years’ imprisonment.

The defendant had entered a timely plea and is granted a one-third discount, leading to a sentence after plea of 32 months’ imprisonment.

In relation to Charges 2 to 5, taking into consideration the substantial value of the goods stolen as well as the sentence imposed on one of the accomplices in Charges 2 and 3, I find that an appropriate starting point after trial would be that of 5 years’ imprisonment.

As before, the defendant had entered timely pleas and is granted a one-third discount, leading to a sentence after plea of 40 months’ imprisonment for each of Charges 2 to 5.

Totality. The defendant had committed five burglaries over a long period of time. He came back to Hong Kong time and again to do so. Each burglary was committed for a reward. The overall loss suffered by the victim companies is $16.63 million. None of the stolen property had been recovered. I find that the appropriate overall sentence after trial for all five offences should be that of 9 years’ imprisonment.

Applying a one-third discount to that sentence would result in 6 years’ imprisonment.

I will therefore order that the sentences in Charges 2 to 5 be served concurrently, the sentence in Charge 1 be served consecutively to the sentences in Charges 2 to 5, making a total of 72 months’ imprisonment.

For the voluntary confession in relation to Charges 3 and 5, I find that a meaningful discount should be given and that would be a 2-month discount.

The final total sentence for all five charges is therefore that of 70 months, or 5 years and 10 months’ imprisonment.

This is the sentence.