HKSAR v. ZHEN BAOHUA AND ANOTHER

DCCC 174/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 174 OF 2015

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REASONS FOR SENTENCE

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1.  There are two defendants before me, Zhen Baohua also known as Yan Po Wah (D1) and Zhao Weidong (D2). Both D1 and D2 pleaded guilty to one count of burglary before me. The offence took place in the small hours on 20 October 2014.

2.  The facts as admitted by the defendants reveal that at around 2.08 am on the day in question, a security guard, Mr Farm, heard the security alarm went off at ground floor, office of China State Construction Engineering (Hong Kong) Limited, Tai Po Tau Water Treatment Works, No 2806 Tai Po Road, Tai Wo, New Territories, Hong Kong.

3.  Mr Farm immediately reported the case and informed Mr Chan, security officer of China State Construction Engineering (Hong Kong) Limited.  Mr Farm then patrolled around the premises and discovered on the same day at around 2.18 am that a window on the ground floor had been prised open.

4.  At around 2.50 am on the same day, Mr Wong Wai Leuk, another staff member of the company returned to the premises. He discovered a window grille of the premises was cut and bent upwards, an iron mesh outside the premises was cut open in the middle and folded together leaving a 1 x 1 metre hole in the middle with 12 freshly cut short metal wires found scattered nearby, with cost of repair around HK$1,500.

5.  A pair of bolt cutters and a folded dirty labour glove were also found near the damaged window grille outside the premises.

6.  Two shoeprints were found near the window that was cut open on a chair and on the edge of the bench inside the premises. Inside the premises, two shoeprints were found on a chair and on the edge of the bench near the window that was cut open.

7.  CCTV of the premises captured D1 and D2 wearing caps passing by between 1.54 to 1.56 am on the same day, and then the camera of the CCTV, which is 30 meters away from the damaged window grille, was covered. 

8.  On the same day, at around 3.11 am, police officers intercepted D1 and D2 for investigation and search.  The two were intercepted by the police near lamppost EC0011, Shek Lin Road, Tai Po, which is around 1 kilometre from the premises.  The defendants were intercepted as their clothing matched the culprits’ clothing as captured by CCTV of the premises.

9.  At around 3.45 am, D1 and D2 were arrested by the police officers.  Under caution at the scene of arrest, D1 claimed he was only walking in the street.  Under caution, D2 claimed he was there to collect debt with D1, that he picked up the cutting pliers just now and denied to have been to the premises. 

10.  The police officers seized a pair of cutting pliers from the left front pocket of D2. 

11.  Forensic evidence was obtained by the police.  Government chemist concluded that:-

(a) D1’s shoes could have made the two shoeprints inside the premises;

(b) The open cut ends of pieces of metal wires were made by the cutting pliers seized from D2;

(c) Contact could have occurred between the clothing of D1 and the damaged window grille based on the fibres stuck on it; and

(d) The bolt cutters seized near the window grille could have contacted the window grille based on the paint transfer examination.

12.  The immigration check records of D1 and D2 revealed that they entered Hong Kong via Lo Wu Control Point at around 1.10 pm on 15 October 2014 within one minute of each other at the same terminal both with a limit of stay of 7 days.

13.  In a subsequent cautioned video-recorded interview, D1 denied the offence.  He claimed he was at the arrest location to accompany D2 to collect debt, but he admitted the clothing and shoes seized from him belonged to him.  D2 in his cautioned video-recorded interview denied the offence.  He claimed he was at the location he was arrested to collect debt.  He claimed he picked up the cutting pliers seized from him from under a bridge nearby.

14.  At the material time, D1 and D2 entered the premises as trespasser and attempted to steal from therein.

15.  D1 had one previous of theft in 2001.  He also had one previous for unlawful remaining.

16.  D2 has a clear record in Hong Kong. 

17.  Mr Lau in mitigation told me that D1 is now aged 45 years old.  He is a fisherman and he makes 7,000 renminbi per month.  D1 is married.  His wife is now 36 years old, a housewife.  They have a son aged 9.  D1 has two aging parents who are in their late 70s and late 60s; both retired.

18.  As for D2, he is now 26 years old, he is still single but he has two children aged 8 and 5 months old.  D2 assists in his family fishing business in China and he earns 3,000 renminbi per month. The father of D2 who is in his 50s runs a fishing business in China.

19.  Mr Lau submitted that both defendants pleaded guilty to the charge and frankly admitted the offence. 

20.  D2 has a clear record in Hong Kong.  As for D1, his previous convictions were in 2001. 

21.  Mr Lau drew my attention to the case HKSAR v Dauz Paul Benedick Joanai HCMA 152/2014.  He drew my attention to paragraph 7 and 8 of the judgment by Zervos J.  Mr Lau submitted that the conventional starting point for burglary of domestic premises with no aggravating or mitigating features should be 2½ years’.

22.  Mr Lau submitted that the defendants committed the offence with little planning, and he urged me to adopt 2½ years’ imprisonment as the starting point in the present case.

23.  Mr Lau also submitted that no property was stolen by the defendants. 

24.  In sentencing the defendants, I have borne in mind the facts of this case and all the matters urged on the defendants’ behalf by Mr Lau. 

25.  The conventional starting point of 2½ years’ imprisonment for the burglary of non-domestic premises applies to burglaries with no aggravating or mitigating features.

26.  In the present case, D1 and D2 committed the offence together.  It cannot be said that the offence was committed with little planning.  In fact, the way the defendants committed the offence showed a degree of professionalism.  A pair of bolt cutters and a pair of cutting pliers were used by the defendants.  The CCTV installed at the premises was covered by the defendants in the course of committing the offence.  The burglary in question was clearly not an opportunistic one. 

27.  The fact that D1 and D2 committed the offence together in the aforesaid manner in the small hours of the day aggravated the seriousness of the offence.  In my judgment, the offence in question calls for a starting point of 3 years’ imprisonment.  D1 and D2 are entitled to the customary one-third reduction for their guilty plea.  That will bring the sentence down to 2 years’ imprisonment. 

28.  For the reasons given, I sentence D1 and D2 to 2 years’ imprisonment.