HKSAR v. REN MINGHU

DCCC 335/2024

[2025] HKDC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 335 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of attempted burglary, particulars of the offence being that the offence was committed on 24 November 2023 at a part of a building at Treasure Garden which is in Tai Po in the New Territories.

2.  The Summary of Facts which has been agreed shows that on that day work was being carried out at Treasure Garden.  There was a bamboo scaffold being erected around the exterior of Treasure Garden and the renovation work was being carried out using that bamboo scaffold, the bamboo scaffold being on the external walls of the building.  The work was actually taking place and there were workers around the area.  In the mid‑afternoon, it would appear to be about 1530, the defendant was seen by other construction workers wandering around and climbing the scaffolding of the podium and also on the 1^st floor around Blocks C and D of the building.  As a result of this, the defendant was told to leave the scaffold and come down which he complied with and then he was arrested by the police later that afternoon.

3.  He said in his cautioned interview later that he had come in from the Mainland at about noon on that day on 24 November 2023.  He got off at Tai Po Market Station, seen the door to Treasure Garden was open and walked up the stairs and entered the construction site.  The defendant admits that he was attempting to burgle at that location.  Based on those facts I was able to convict the defendant.

4.  The defendant is a person of clear record, 36 years old, born in the Mainland, married but separated from his wife, I am told, there are no children.  He lives in Shenzhen with his elder sister and works as a what I think has been described as a massage therapist but was unemployed at the time.  He had come into Hong Kong on that day on a two-way permit.

5.  Now turning to the sentencing for an offence of this nature.  The case involved attempt to burglary of a residential building.  The fact that it is an attempt does not depart from the level of sentencing.  The tariff sentence, there is a guideline or tariff sentence for a burglary of a residential building or the attempted burglary of a residential building, which is a starting point for sentence of 36 months or 3 years’ imprisonment after trial for a person of clear record where there are no other aggravating or mitigating factors.

6.  I have been pointed out by the defence that in this case the defendant did not enter or attempt to enter any of the residential units of the building but was simply on the scaffolding outside and where that is the case the Court of Appeal said that a court may depart from the normal tariff and assume a lower tariff in a case such as that where it is unlikely to cause as much alarm or potential damage where a confrontation in the confines of a home may not necessarily occur and in that case a lower starting point can be justified. Support for that can be found in the case of HKSAR v Suen Chi Wai [2015] 5 HKLRD 33.  The defendant’s plea of guilty and the facts of this case in my consideration allow the court to look at adopting a lower starting point than the normal starting point of 36 months’ imprisonment.

7.  Here, the major mitigating factor of course is the defendant’s plea of guilty which will entitle him to a one-third discount from whatever starting point is adopted by the court.  I am asked to look at also the potential aggravating factors and the only aggravating factor that could exist in this case is where the defendant entered Hong Kong and came to that location in order purely to commit a burglary.  The defence argues that as the defendant was here as a tourist obstensively for sight‑seeing, there is no other evidence to suggest he came into Hong Kong to commit this burglary, he has not got any convictions previously for burglary and he had no tools or equipment suitable for burglary in his possession when he was arrested.

8.  Having considered all the overall facts, I consider there are no particular aggravating factors in this case and there is a single mitigating factor in this case which is the defendant’s plea of guilty.  Accordingly, I will adopt a lower starting point of 30 months’ imprisonment as the starting point in this case.  I will give the defendant credit for his plea of guilty which leads to a final sentence of 20 months’ imprisonment and that will be the sentence of the court.