HKSAR v. ZHU LIHUI

 DCCC977/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 977 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 2 offences, namely "Burglary" (Charge 1) and "Unlawful remaining" (Charge 2).

Summary of Facts

2.  At the material time, Ms. Rentuza (PW1) was a domestic helper working at No.6 Fei Ngo Shan Road, Sai Kung (the "Villa").

3.  About 5:00 pm on 31 July 2010, PW1 found the defendant hiding in a storeroom of the Villa. She notified the Police. The Police soon arrived. They cordoned off the Villa to search for the intruder.

4.  About 6:30 pm, the Police found the defendant in the said storeroom. PC 6822 (PW2) searched him and found a torch and travel documents in the defendant's left front trouser pocket. PW2 arrested and cautioned the defendant in Punti. The defendant admitted in Putonghua that he entered the Villa to steal.

5.  PW2 checked the defendant's travel documents but could find any record of him entering Hong Kong. Under caution, the defendant further admitted that he had entered and remained in Hong Kong unlawfully.

Mitigation & Sentence

6.  The defendant is now 28. He has 5 conviction records which include 1 offence of "Burglary", 2 offences of "Attempted Burglary", 4 offences of "Unlawful remaining" and some other theft-related offences.

7.  Ms. CHENG submitted that the defendant is a mainlander working in the IT field in Shenzhen earning RMB2,800 per month. He lives with his girlfriend and they have a 2-year-old daughter. The defendant came to Hong Kong because his salary was not enough to support his family.

8.  The defendant has rightly admitted in his mitigation letter that he had spent the last 10 years in crossing the border to commit crimes and serving time in Hong Kong prison. Ms. CHENG submitted that the defendant is truly remorseful this time. He has determined to end this kind of lifestyle once and for all. I note that he was last released from prison on 28 May 2010 after serving the sentence for his 4^th "Unlawful remaining" offence. Yet, he crossed the border again 2 months later.

9.  Time after time, the court has expressed in very clear terms that having financial difficulties is no mitigating factor for committing a crime, needless to say crossing the border to steal. I cannot stress this message enough.

10.  The normal starting point for domestic burglary is 3 years imprisonment. The defendant's previous records render him a "repeated offender", which is an aggravating factor in terms of sentencing. In my view, his sentence must carry a deterring element. In other words, a higher than normal starting point is required. For Charge 1, I adopt a starting point of 3.5 years. One-third discount is given for the guilty plea, reducing the sentence to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charge 1 is 28 months imprisonment.

11.  Charge 2 is the defendant's 5^th conviction of "Unlawful remaining in Hong Kong". For the same offence, he was previously sentenced to 15 months, 16 months, 15 months and, most recently, 18 months imprisonment. Again, a sentence with deterrent effect is required. I adopt a starting point of 30 months. One-third discount is given for the guilty plea, reducing to the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for Charge 2 is 20 months imprisonment.

12.  Regarding totality, the Court of Appeal in HKSAR v LEE Kwai Wing CACC 56/2008 held "If a defendant, having entered and remained in Hong Kong illegally, commits another offence, the sentence for the 'unlawful remaining' charge should run consecutively to the sentence for the other offence. The offences are separate and distinct." On this basis, I order the sentence for Charge 1 to be served consecutive to Charge 2. In other words, the total prison term for both charges is 48 months (4 years).