HKSAR v. ZHUANG CHENGXIAO

DCCC 1087/2017

[2018] HKDC 391

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1087 OF 2017

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REASONS FOR SENTENCE

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1.  This is a dwelling burglary. The targeted place is a residential flat, which is situated at Kweilin Street in Sham Shui Po, being subdivided into 3 individual rooms and occupied by 3 different households. The front door of the subdivided flat is secured with a door grille while the rooms inside only with a locked door.

2.  The defendant tried to burgle one of the rooms there (hereinafter called room B) twice on the same day; he got away with it the first time but not the second because this time the defendant had found himself face to face with the occupier of room B, Miss Lay, who was present in the room at the time.

3.  The defendant pleaded guilty before me to 2 counts of burglary involving the same premises on the same day.

4.  About 6 o’clock in the morning of 20 October 2017, Miss Lay left home for work. She locked her room door and the door grille of the flat but not the front door which was left open.    

5.  A couple of hours later, Mr. Chow, a neighbour from the opposite flat, noticed the defendant attempting to open the door grille of Miss Lay’s home with a great many keys in his hand. When asked what he was doing, the defendant said he wanted to enter the flat but the key was broken.

6.  Later in the morning at around 9 o’clock Mr. Chow went out, the defendant was still there outside Miss lay’s home acting like how he was before – keeping on tampering the door grille. Mr. Chow didn’t say a word this time but when he came back about an hour later, seeing the defendant doing the same thing as before, he warned the defendant that he would call the police if he kept on doing that. The defendant looked very frightened as he left the scene immediately.

7.  Miss Lay, who returned from work in the evening, discovered that someone had broken into her room because there were signs of ransacking and some of her valuables had gone missing such as iphones, ATM cards, keys and $4,000 Renminbi cash etc. A report was made to the police.

8.  Sometime after 9 p.m. on the same day, the defendant went back to room B to steal, but this time he found Miss Lay inside as soon as he opened the room door. Miss Lay immediately shut and locked the door and called the police.

9.  Police officers came to the scene in double-quick time and caught the defendant. Except the cash, everything else stolen from the burglary earlier in the day had been recovered from the defendant. Also found on him was a screwdriver.  

10.  In the subsequent interview, the defendant told the police that the reason he came back because he wanted to return some of the stolen property which were of no use to him such as the bank cards and mobile phones, and to see if any more money or other things he could take away. 

11.  The defendant, aged 41, has 5 previous convictions – two of them are dishonesty offences, both shoplifting, for which he was given a couple of days prison term on both occasions. His last conviction is in December 2017 for possession of drugs and he is currently serving DATC for that offence.

12.  The defendant is a married man with 4 children, 3 sons and a daughter, whose age ranging from early teens to early 20s. He used to work as a construction site worker earning about $15,000 a month, but his sacking in May 2017 has rendered him unemployed ever since.

13.  Counsel for the defendant said that on the day of offence, the defendant had a row with his wife and left home wandering the streets aimlessly. But he somehow came to the burglarized premises, which were on the 3^rd floor of a residential building, and found a bunch of keys dangling at the door grille. When he tried to open it to enter the flat, he broke the key; that’s why he spent hours outside the flat tampering the door.

14.  Counsel submitted that though the defendant committed two burglaries, they were in fact related to the same premises and the time gap between them was only a few hours apart; it could be regarded as one single transaction. Counsel therefore asked for concurrent sentence.

15.  Counsel further submitted that the present case is a case of opportunistic burglary because the defendant chanced upon the opportunity that someone had left their keys unwittingly at the door lock.

16.  Burglary is an awful crime – the impact on victims may not simply confine to lost possessions, they may even lose their sense of security in their own home and feel vulnerable for years to come – people’s lives may thus be profoundly affected.

17.  As always, the court has taken a tough line with burglars. There are sentencing guidelines as set down by the higher court - for domestic burglary, a term of 3 years imprisonment, in the absence of aggravating features, is to be considered.    

18.  Even if the defendant did come across the chance of someone leaving the keys at the door lock, the fact that he spent hours in figuring out how to get in there tells us one thing that that burglary is not an opportunistic one.

19.  For the facts of the present case, I take 3 years as starting point for each of the burglary, and since his plea is timely, he is entitled to a full one-third discount. Giving the appropriate discount, the starting point is reduced to 2 years for each offence.

20.  As far as his mitigation is concerned, apart from his guilty plea, there isn’t anything of substance which will justify a further reduction in sentence.

21.  Getting burgled once is devastating enough, let alone to be burgled twice in a row like poor Miss Lay had experienced in the present case.  The terms should be made consecutively to one another but for the totality principle, I order that the term of charge 1 be run consecutively to 4 months of charge 2, the total term is one of 28 months’ imprisonment.