HKSAR v. LI WING

DCCC 173/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.173 OF 2010

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Reasons for Sentence

1.  The defendant faces 3 charges of “Burglary”, with 2 being contrary to section 11(1)(b) and 1 contrary to section 11(1)(a) of the Theft Ordinance, Cap.210. He also faces 1 charge of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115.

2.  The defendant pleaded guilty to all 4 charges, admitted to the summary of facts and was duly convicted.

Summary of facts

Charge 1

3.  At all material times, PW1 and her daughter resided at a wooden hut at the charge address in Tin Shui Wai. On 2^nd November 2009, mother and daughter left for work and school in the morning respectively. PW1 returned home at about 6:30pm to find the window of the living room opened and their home ransacked. Property valued at around $13,000 and particularized in the charge were stolen.

4.  A palm print of the burglar was found on a wardrobe in PW1’s bedroom and police enquiries revealed that it was the defendant who had entered the hut as a trespasser and stolen the property.

5.  The defendant was arrested on 7^th December and he admitted to this offence under caution.

Charge 2

6.  PW5 and his family resided at the 3^rd floor and roof-top at the charge address in Tseung Kwan O. At about 6:50am on 28^th November 2009 (26 days after the charge 1 burglary), PW5 found the defendant sleeping on their roof-top area. PW5 immediately locked the door of the roof-top and went to make a report to police. The defendant fled the scene before the police arrived about 10-15 minutes later. A packet of noodle and a knife was stolen by the defendant. Similar to the previous charge, the defendant left his fingerprint on a plastic box that was on the roof-top area. The defendant eventually admitted to this offence under caution.

Charge 3 and 4

7.  PW7 and his family resided at a 4-storey building in Tseung Kwan O. On 6^th December 2009 (8 days after charge 2), PW7 went to sleep at around 11:30pm. When he got up at about 4:15am and went to the bathroom, he found the defendant inside. PW7 immediately closed the door and shouted, “Thief” and his wife called the police. The defendant climbed out of the bathroom window and jumped over to the nearby building. He then wrapped himself with a blanket and hid behind a washing machine in a nearby house.

8.  PW7’s neighbours witnessed the escape and the defendant was located and arrested when police arrived at scene. Nothing was stolen from PW7’s house.

9.  The defendant admitted under caution that he was an illegal immigrant who sneaked into Hong Kong 2 days prior to the burglary in charge 4. He also admitted that he had entered PW7’s house intending to steal therein.

Previous convictions

10.  The defendant has 3 convictions. 3 similar to charges 1-3 and 3 similar to charge 4. Records were admitted by the defendant.

Mitigation

11.  The defendant is 29, single and an only child. He was born in China and received education up to F.3. His parents are both over 56 years old and unemployed.  He had worked as an electronic worker and deliveryman in China. The defendant was unemployed at the time of arrest and had been in unemployment for the past 2-3 years. I am told that the defendant was suffering from intestinal bleeding and that he committed the present offences so that he could use the money to treat his illness. The defendant wishes to go home to find a job and maintain his parents. Solicitor for the defendant wishes the court to bear in mind the principle of totality when sentencing.

Sentence tariff

12.  For a burglary committed at domestic premises, the normal starting point is one of 3 years’ imprisonment (see Attorney General v. Lo Ching Fai [1996] 1 HKC 747).

13.  In the case of HKSAR v Song Jianhua, CACC 362/2006, the applicant pleaded guilty to one charge of burglary of a domestic premises and was sentenced to 32 months imprisonment, meaning that the learned trial judge adopted a starting point of 4 years’ imprisonment. The Court of Appeal observed thus,

“5. There were, no doubt, aggravating features present in this case. The appellant has two previous robbery convictions, a previous conviction for burglary, as the judge noted, and a previous conviction for attempted theft.  All these offences were committed on occasions when the appellant had come unlawfully to Hong Kong from the mainland.  He has five previous illegal entry offences.

6. The appellant has, over the course of these offences, all committed during the past 10 years, treated Hong Kong, its citizens and its laws with contempt. 

7. We cannot see that the judge could have approached the prior criminal history of the appellant as anything other than an aggravating factor.  No doubt the judge referred specifically to the appellant’s earlier burglary of premises in the same location as the premises in the present case because that struck her as being a particularly brazen coincidence of events.  It matters little that the burglary occurred nearby in the same street rather than in the same building, as stated by the judge.

8. In our view, the fact that the burglary took place in the early hours of the morning, at a time when the occupants of the flat were highly likely to be home to the appellant’s knowledge was also an aggravating factor the judge was entitled to take into account : see HKSAR v. Tong Fuk Sing [1999] 3 HKC 332 at 335 to 336 and HKSAR v. Ng Wai Hing [2003] 2 HKLRD 338 at 342. 

9. As to the appellant’s final complaint, it matters not at all to considerations of sentence that due to the diligence of a security guard and the prompt action of the police, the appellant was in this case unable to steal anything prior to being apprehended.

10. The starting point of sentence of four years’ imprisonment taken by the judge, while on the high side, cannot, given the appellant’s background and the circumstances of the offence, be criticised in principle, nor can the sentence finally imposed be said to be manifestly excessive and the appeal is dismissed.”

14.  In relation to charge 4, the established tariff for sentencing a person who remained in Hong Kong having entered unlawfully is that of 15 months’ imprisonment upon a guilty plea (see R v So Man-king and Others [1989] 1 HKLR 142). The guideline sentence will invariably be ordered to run consecutively to the sentence for the other offence which has resulted in the prosecution of the accused (see Sentencing in Hong Kong by Cross & Cheung, 5^th edition at page 617).

15.  The prosecution submitted the case of HKSAR v Hau Hoi Tung, CACC 39/2002 for my reference. The case deals with persons who had committed the offence of illegally entering and remaining in Hong Kong. The Court of Appeal is of the view that, “A sentence of 18 months would have been justified for a plea of guilty to a second offence of this kind and, for a third offence, there could have been no legitimate complaint to a sentence of 21 months’ imprisonment where a plea of guilty had been entered.” (at paragraph 8 of the judgment)

Sentence

16. The conduct of the defendant must have caused much distress in the families, more so those in charge 2 and 3. I can only imagine the shock and horror of finding a total stranger in one’s home when one wakes up in the middle of the night to visit the bathroom or in the morning in one’s kitchen. It will be a long time before they will be able to reclaim that sense of safeness that one is used to when at home. This is one aggravating factor.

17.  The defendant has 1 previous conviction for robbery, 2 for theft and 3 for remaining in Hong Kong having entered unlawfully. The previous offences were committed over a 5 year period, with the defendant committing his present offences shortly after his release from his last convictions for theft and illegal remaining in 2008. Both in terms of previous convictions and his contempt for Hong Kong’s laws, the defendant in our present case is at least on a par with the applicant in HKSAR v Song Jianhua. This sad conviction history of the defendant is another aggravating factor.

18.  Except for his guilty plea, I find that there are no mitigating factors to cause me to depart from the sentencing guidelines and authorities.

19.  Taking into consideration that the defendant is a repeated offender with scant regard of the law, the trauma that the defendant had put the victims in charges 2 and 3 through, I will adopt the starting point of 3 years in relation to charge 1, 4 years in relation to charge 2 and 3 and reduce each by one third to reflect the defendant’s guilty pleas, taking the sentence on each charge down to that of 24 months’, 32 months’ and 32 months’ imprisonment respectively.

20.  In relation to charge 4, I will follow the observation of the Court of Appeal in the above referred to case of HKSAR v Hau Hoi Tung and adopt a starting point so that a sentence of 21 months’ imprisonment after plea would result.

21.  Having considered the principle of totality, I will order that the sentences in charges 1, 2 and 3 be served wholly concurrently, while the sentence in relation to charge 4 be served wholly consecutively with the rest of the sentences.

22.  The total sentence is therefore 32 months plus 21 months, which is 53 months’ imprisonment.