HKSAR v. HUA GUANGLIN

DCCC 479/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 479 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of burglary and two offences of breach of condition of stay.

2.  He has agreed the amended Summary of Facts, and I have convicted him of those three offences.

3.  The amended Summary of Facts show that the defendant came to Hong Kong on the strength of a visitor permit.  He was allowed to come here on 19 June 2015 - that is, last year - and allowed to stay until 26 June of the same year.  He was not allowed to take up employment as part of his permission to stay.

4.  The defendant in fact did take up employment at a place called Hoi Tat in February of 2016.  He worked at Hoi Tat, which was a fishball restaurant in Tai Po in the New Territories.  He worked there for two periods between 1 and 6 February 2016 and 11 and 16 February 2016, and in doing so, breached the condition of stay by which he was permitted to remain in Hong Kong.

5.  At the same time, he was also breaching the other condition of stay which restricted his stay until 26 June of the previous year, 2015, and in fact he would maintain his unlawful presence in Hong Kong until 6 March 2016, when he was arrested in respect of the burglary.

6.  The burglary occurred at Hoi Tat restaurant, and on 4 March this year, the operator of the restaurant had left the rear door and the office door to the attic of the premises secured, and when they returned at about 6 o’clock on the same day, they found the rear door and the office door had been prised open, and a total of $248,000 in cash placed in the office and the attic in various locations had been taken.

7.  A CCTV capture of the relevant time showed the defendant and another person entering Hoi Tat from the rear door and coming out about four minutes later with a paper bag.

8.  The defendant was identified as a culprit.  He was arrested on 6 March 2016.  He immediately admitted, under caution, he committed the offence of burglary with a person called Kong Yau, and they had shared the proceeds of the burglary equally.

9.  At the defendant’s place of residence, the police found, or were able to recover, a black rucksack which contained $139,270 in cash from the burglary.  Two crowbars were also found, and the defendant later admitted that they were used in the burglary.

10.  In a later video-recorded interview, the defendant made further admissions.  He admitted his overstaying in Hong Kong. He admitted the fact that he had worked at the Hoi Tat restaurant.  He admitted committing the burglary together with the man known as Kong Yau.  He admitted they had prised the doors and shared the stolen money, and the other person had taken about $76,000 cash and gone back to China, and that the money found in his residence had been stolen from Hoi Tat.

11.  The antecedents of the defendant show that he is 36 years old.  He is a resident of the mainland of China.  In Hong Kong he has a clear criminal record.

12.  In mitigation, I am told the defendant was educated at mid-level.  He had lost his employment and was in financial difficulties, and that was the reason for committing the offence.  He has written a letter of mitigation in which he said he was going to get married, and he needed, amongst other things, money for that.  He expresses his remorse for the offence he has committed.

13.  As far as the approach to sentencing is concerned, the burglary was committed at a non-residential premises.  For a person of clear record after trial, a starting point for sentence of 30 months’ imprisonment can be imposed for a burglary of this nature.

14.  The court must also consider if there are any other aggravating or mitigating factors.  The aggravating factor in this case would be the fact that the burglary was committed by the defendant acting with another person, or acting in concert.  There was also a degree of sophistication in the burglary in that it was a place the defendant had worked at before, and also tools and equipment were needed to break into the premises.

15.  I do note that a good portion of the money stolen was in fact recovered, but because the burglary was committed in concert with another, that is an aggravating factor, and I will increase the starting point for sentence by 3 months to reflect that factor.

16.  On the 1st charge then, the starting point for sentence is one of 33 months’ imprisonment.  That will be deducted by one-third for the defendant’s plea of guilty to a figure of 22 months’ imprisonment.

17.  The 2nd charge involved the defendant taking up employment when he was only permitted to remain in Hong Kong as a visitor. This occurred on two separate occasions.  In mitigation it may be said the employment was normal employment and otherwise lawful.

18.  On this charge, I will take a starting point for sentence of 3 months’ imprisonment, and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

19.  On the 3rd charge, the defendant has also overstayed in Hong Kong by a period of about 9 months.  I will take a starting point again of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

20.  The offences are separate and independent and can be served consecutively.  However, having regard to the issue of overall totality, I will order that the 2nd and 3rd charges be served concurrently to one another, but consecutively to the 1st charge.

21.  This gives an overall sentence or total of 24 months’ imprisonment, and that will be the sentence of the court.