HKSAR v. ZHANG GUILIN

DCCC 10/2018

[2018] HKDC 956

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 10 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of five charges. Three of those are burglaries of commercial premises. There is one that is a theft by finding, and the final one is a charge of remaining in Hong Kong unlawfully which represents his illegal entry into Hong Kong.

2.  The offences occurred in and around late August and early September of 2017 and appeared to have been committed in the area of Discovery Bay on Lantau Island.  The defendant had entered Hong Kong illegally via the Sha Tau Kok border on foot apparently, and on 29 August and 31 August 2017, he committed burglaries at the Peony Restaurant which is part of the Discovery Bay Residents Club. 

3.  The first burglary on 29 August involved the taking of cash of around $7,840 and 10 electronic tablets which were six iPad minis, one iPad and three Samsung Tab3s.  The second burglary occurred on 1 September 2017, involved the taking of around HK$1,000.  In respect of the burglaries, there was evidence of the defendant’s fingerprint, footprint and - sorry - shoeprint and CCTV footage.  

4.  The theft involved the defendant picking up an Octopus card he found outside a supermarket in Discovery Bay on 31 August.

5.  The final burglary occurred on 1 September 2017 at Paisano’s Pizzeria in Discovery Bay.  The defendant had stolen a total of some $17,140 from that location and also some cans of soft drink.  Something had been used to prise open the door.  Again a palm print of the defendant was found on the cashier desk.

6.  The defendant is aged 33.  He is a China resident from Jiangxi.  He is said to be single but I am told he has been in a relationship and has a son.  He has a clear record in Hong Kong, and he worked as a shoe factory worker in the mainland.  He came to Hong Kong to experience something different in terms of his environment but ran out of money fairly quickly.  It is said the locations were easy to break into and to steal from, but the facts show the defendant could not be described as a professional burglar by any sense of the reading of the word, and he took advantage of poorly-secured premises.  I am told the defendant is remorseful.  He regrets what he does. 

7.  In respect of a burglary of a non-domestic premises, commercial premises, where there are no particular aggravating or mitigating factors, the starting point for sentence for a person of clear record who pleads not guilty would be 2 and a half years’ imprisonment or 30 months’ imprisonment. 

8.  There is no guideline sentence in respect of the theft but it is a theft by finding.  So it is a minor form of theft.  However, having examined the facts of the case, I see no reason to depart from the existing guideline for non-domestic burglaries.  That means that on the 1st, 2nd and 4th charge, I will take a starting point of 30 months’ imprisonment and reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

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

10.  In respect of the 5th charge, there is again a guideline sentence for a first entry into Hong Kong which is that after deduction for plea of guilty, a sentence of 15 months’ imprisonment is appropriate. 

11.  So the sentences at present will be as follows:

on the 1st charge, a sentence of 20 months’ imprisonment;

on the 2nd charge, a sentence of 20 months’ imprisonment;

on the 3rd charge, a sentence of 2 months’ imprisonment;

on the 4th charge, a sentence of 20 months’ imprisonment; and

on the 5th charge, a sentence of 15 months’ imprisonment.

12.  These offences were all committed separately and theoretically could all be served consecutively.  That, however, would lead to an excessive sentence of imprisonment.  The court must arrive at what is a correct and fair overall totality for this series of offences, the offences committed over a short space of time, and in fact some of the money in respect of the final offence of burglary was recovered from the defendant.

13.  Yes.  I determine that the sentence should be served as follows to reflect an overall correct total.  Charges 1 and 2 should be served concurrently to each other, and Charges 3 and 4 should be served concurrently to each other, but I am going to order in respect of the third and fourth offences that 10 months of those sentences be served consecutively to the first and second offences.  That leaves the 5th charge, and I am going to order that 8 months of that sentence be served consecutively to the sentences on Charges 1 to 4.  This will give an overall total sentence of 38 months’ imprisonment.  That will be the total sentence, 38 months.