HKSAR v. LI JIANZHOU

DCCC142/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 142 OF 2011

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Reasons for Sentence

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1.  Defendant, I found you guilty after trial of an offence of burglary, contrary to section 11(1)(b), of the Theft Ordinance.

2.  I found that you burgled a snack shop at the Nam Wah Catholic School, located at No. 5 Wing Ming Street, Cheung Sha Wan, Kowloon, at about 1.00 am on 25 October 2010.  Your palm print was found on the door of the snack shop and a CCTV recording showed you and another unknown male to have entered the snack shop and left carrying bags. 

3.  I found that the CCTV recording showed you as the male breaking open the snack shop door. Cash of $227.70 was stolen and various kinds of food and drink such as chicken legs, fish balls, dumplings and soft drinks, the total value of $497.26, were stolen.

4.  At the time of commission of this offence you were an illegal immigrant in Hong Kong. Some two months later, on 4 December 2010, you were arrested for unlawful remaining in Hong Kong at the junction of Sai Yeung Choi Street and Nelson Street in Kowloon.

5.  In the trial before me you pleaded guilty to unlawful remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.  However, a Newton enquiry was held as to whether you surrendered to police or whether the police had intercepted you on the street.  I found that the police had seen you in the Mong Kok area carrying a rucksack, as you had avoided eye contact and looked nervous, the police officer believed you were in possession of corrosive acid.  However very shortly after the officers observation you quickly and immediately turned down a back alley.  However, the officer immediately chased after you and intercepted you.           

6.  I rejected your evidence in the Newton enquiry that you had surrendered to the police. 

7.  Mr Lawrence Law, your counsel, has mitigated on your behalf before me this morning.  I have taken into account all that he has had to say.   

8.  You are 30 years of age and have a clear record. Mr. Law says that you had come from China on 1 December by climbing over the mountains.  In respect of the offence of burglary, he acknowledges that the premises are of commercial premises.  He submits there is no serious substantial damage, and in respect of the stolen property, the value is limited. 

9.  As regards the illegal remaining charge in Hong Kong, he accepts that the usual 15 months’ imprisonment after a plea of guilty is not applicable to you as in this case a Newton enquiry was held.  

10.  The tariff laid down by the court of appeal is clear for burglary of commercial premises (of which this snack shop at the school is considered to be.)  It matters not the value of the goods was small.  For the burglary charge, you shall be sentenced to 2½ years’ imprisonment or 30 months in total.  

11.  Defendant, although you pleaded guilty to the unlawful remaining in Hong Kong, that was not a true plea of guilty in that you contested the facts and a Newton enquiry was held.  In those circumstances, the usual sentence of 15 months after a full plea of guilty is not applicable to you.

12.  I have taken into account your clear record and I consider 17 months is appropriate for the illegal remaining charge, to which you shall be so sentenced. 

13.  There is clear authority from the Court of Appeal that in sentencing for offences of illegal remaining charge and other charges, that the sentences should run consecutive to each other.  In following those clear principles I order that the sentence in Charge 2 is to run consecutive to the sentence in Charge 1.

14.  Defendant, you are sentenced in total to 3 years and 11 months’ imprisonment, that is for Charges 1 and 2.