HKSAR v. TANG SANZAI

DCCC 1113/2024

[2025] HKDC 29

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1113 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Tang pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that he, on 7 September 2023, in Hong Kong, having entered as a trespasser part of a building known as 2^nd Floor, No 208H Kat Hing Wai, Kam Tin Road, Kam Tin, Yuen Long, New Territories, attempted to steal therein.

Facts admitted by Mr Tang

2.  On 7 September 2023, at about 7:15 pm, tenant Chan left her domestic flat on 2/F, House No 208H, Kat Hing Wai, Yuen Long, after ensuring the windows were locked.

3.  At 9:40 pm, Chan returned to the premises and found the window of the master bedroom (“the Window”)  prized open with signs of ransacking inside the premises.  The repair cost of the Window came to $1,000.

4.  CCTV installed outside House No 208K, Kat Hing Wai, captured the images of a male walking by at about 7:52 pm on 7 September 2023; the male was wearing a navy T-shirt and blue trousers and he was carrying a backpack.

5.  On 8 September 2023, at 6:02 pm, PC9882 intercepted Mr Tang inside Kam Sheung Road MTR Station.  Mr Tang was then wearing a navy T-shirt and blue trousers and he was carrying a backpack.  Upon search, PC9882 found inside the said backpack, inter alia, a pair of yellow hydraulic steel-bar cutters (“E1”), a red screwdriver and a pair of gloves, together with:

(a)  Canadian $10;

(b)  Hong Kong $2,833; and

(c)  RMB 1,201 Yuan.

6.  PC9882 arrested Mr Tang for “going equipped for stealing”.

7.  In a subsequent cautioned VRI, Mr Tang stated the following:

(i)  He entered Hong Kong on 7 September 2023 through Lo Wu Control Point;

(ii)  E1 belonged to him; he brought it into Hong Kong from the Mainland;

(iii)  On 7 September 2023, he visited Kam Sheung Road and was looking for job opportunities; and

(iv)  He was the male captured by the CCTV footage.

8.  E1 as well as the grille of the Window (“the Grille”)  bearing one cut mark were sent to the Government Lab for examination.  Upon comparison of a controlled indented toolmark made by E1 and the recovered cut mark on the Grille, Dr Wong the forensic scientist found the physical appearance of the cut mark on the Grille was consistent with its having been made by a double-bladed tool; that the cut mark matched in outline and wear characteristics with the controlled indented toolmark made by E1.  Dr Wong concluded that the cut mark on the Grille was likely to have been made by E1.

9.  Immigration Department records confirmed that Mr Tang was in Hong Kong from 31 August to 4 September 2023; and from 7 September 2023 onwards.

10.  Mr Tang now admits that on 7 September 2023, he entered as a trespasser part of the building specified in the Charge and attempted to steal therein.

Criminal record

11.  Mr Tang has a clear record in Hong Kong.

Antecedents

12.  Mr Tang is aged 47 (45 at the time of the offence), a Mainland resident, educated to primary school level in the Mainland.  He was unemployed at the time of arrest.  Mr Tang is divorced and resided in Jiangxi Province.

Mitigation

13.  Mr Joseph Li of solicitor assigned by the Director of Legal Aid mitigated on behalf of Mr Tang.  The following is a summary of the mitigation submissions.

14.  Mr Tang is divorced and was living with his daughter (22)  currently a college student in the Mainland.  Also living together were Mr Tang’s parents (both 75).  The whole family relied on him financially.

15.  Mr Tang previously worked as a fire service installer in the Mainland earning a monthly salary of RMB10,000.  He was the sole bread winner of the family.

16.  The strongest mitigating factor is the plea of guilty.  Mr Tang is remorseful and asks the court to give him a chance; he promises not to re-offend.  He wishes to serve his sentence as soon as practicable and then return home to take care of his elderly parents in the Mainland.

17.  There is no loss of any stolen property; the only damage caused was to the window grille with a repair cost of $1,000.  At the time of the burglary, the victim was not at home so would not have been alarmed by the intrusion.

18.  Mr Tang has a clear record in Hong Kong.  The circumstances of commission of the offence were purely opportunistic as Mr Tang originally came to Hong Kong in order to seek employment in construction sites.

19.  The (sentencing)  guidelines for burglary of domestic premises are set out in:

(a)  R v Chan Yui Man, CACC 36/1988, at para 7; and

(b)  HKSAR v Lau Pang, CACC 252/2004, at para 10,

with 3 years of imprisonment being the starting point for domestic burglary.

20.  The court is urged to adopt 3 years’ imprisonment as the starting point for sentencing.

21.  Mr Tang is entitled to the usual one-third discount for his timely plea of guilty.

22.  Upon indication by the court, and after instructions have been taken, Mr Li informed the court that Mr Tang would give evidence to substantiate his claim that he came to Hong Kong to look for a job (illegally)  rather than to commit burglaries.

23.  Thereafter, Mr Tang gave evidence and was cross-examined.

Sentence

24.  First of all, I reject the claim that the burglary was opportunistic in nature.  The premises in question were located on the 2^nd floor and not on the ground floor.  Entry was gained by Mr Tang through a bedroom window whose grille was cut with the pair of hydraulic steel-bar cutters found on Mr Tang upon arrest.  Also found on Mr Tang were a screwdriver and a pair of gloves.  These items speak for themselves.

25.  Mr Tang came to Hong Kong from the Mainland on the very day when the burglary was committed.  Given the presence of these items on him, I would have drawn the inference that Mr Tang came to Hong Kong to commit burglaries of which the index offence was one example had he not given evidence pointing otherwise.  In the event, after hearing his evidence, I had a reasonable doubt about his real intention of coming to Hong Kong with those tools.  I gave the benefit of that doubt to Mr Tang and will not therefore increase the starting point of sentence.

26.  I adopt, as urged by Mr Li, a starting point of 3 years’ imprisonment, being the usual sentence for a first offender of this type of burglary.

27.  Mr Tang pleaded guilty to the offence in good time for which he shall be entitled to the customary 1/3 discount.  There are no other mitigating factors that are capable of reducing the sentence further.

(Mr Tang, please stand)

28.  Mr Tang is sentenced to 2 years’ imprisonment.