HKSAR v. WEI YONGJIAO AND OTHERS

DCCC 280/2018

[2018] HKDC 1426

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 280 OF 2018

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Reasons for Sentence

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1.  The four defendants are two-way-permit holders from China and they pleaded guilty between them to a total of nine charges of burglary relating to some burglaries that occurred at premises in Central in the Mid-Levels. The premises in question were at No. 3 Staunton Street in Central. The premises themselves were under renovation and there was scaffolding erected around the building and that apparently is how entry was gained into the premises.

2.  The first three defendants entered Hong Kong on 14 August 2017, 4th defendant entering on 16 August 2017.  The burglaries occurred in the early evening of 16 August 2017 and were reported to police by 8.30 pm on 16 August.

3.  The 1st and 3rd defendants were located on CCTV approaching the premises in question.  There are a total of nine burglaries that have been charged, all the burglaries occurring that evening, that is 16 August, inside the premises.  From the facts, it would appear all the premises were unoccupied at the time of the burglary and that items such as foreign currency and jewellery were taken from the premises and that entry into the premises was by use of the scaffolding that surrounded it.

4.  Evidence against the defendants consists of evidence of DNA, footprint evidence and items recovered from the respective defendants.

5.  The 1st and 2nd defendants had been arrested shortly after the burglaries on 16 August 2017 and the 3rd defendant had been arrested on 2 February 2018.

6.  As far as the charges are concerned, the 1st defendant faces two charges, that is the 1st and 2nd charge, and on the 1st charge he is jointly charged with the 3rd defendant.  The 2nd defendant faces all the remaining charges, that is 3 through to 9, and he is jointly charged with the 4th defendant on the 4th charge.

7.  In favour of all the defendants, they have all obviously pleaded guilty. 

8.  There is no information about damage to the premises although the 2nd defendant did admit to breaking a window and it would appear most, if not all, of the property was recovered shortly after the burglaries.

9.  As far as the defendants are concerned, the 1st to 3rd defendants are -- in fact, all the defendants, as I said, are two-way-permit holders.  They are all comparatively young men, ranging between the age of 22 to 30.  The 1st to 3rd defendants are of clear record now. Now, the 4th defendant, although he has a conviction of burglary, was, I understand, of clear record at the time of the offences.

10.  Turning to the question of sentence, these are burglaries of domestic premises.  A person of clear record after trial can expect a starting point for sentence of 3 years’ imprisonment, 36 months’ imprisonment, for an offence such as this. 

11.  It would appear that in most of these cases, if not all of them, there are other aggravating factors that have to be taken into account.  The first is that the defendants would appear from the facts, that is a permissible finding on the facts I have, that they came to Hong Kong in order to commit the burglaries and that all the defendants have committed at least some of their burglaries jointly with other defendants which is an aggravating factor.

12.  As far as mitigating factors are concerned, all defendants share the fact that they pleaded guilty and, of course, that they were of clear record at the time of commission of the offence.

13.  Taking these basic principles into account, I consider that the sentences should be calculated as follows in respect of each defendant.  I will deal with each defendant in turn.

14.  Firstly, the 1st defendant, he is 30 years old, faces two charges, one of them, the 1st charge, jointly with the 3rd defendant. Taking the 1st charge, the starting point for sentence before aggravating factors are considered is obviously 36 months’ imprisonment.

15.  There are two aggravating factors that I have already elucidated.  That is the fact that the defendant came here to commit the offence from overseas, as we term it, and, secondly, that he committed the offence jointly with the 3rd defendant.  That would raise the starting point to one of 42 months’ imprisonment.  That, after deduction for a plea of guilty, leads to an end sentence on the 1st charge of 28 months’ imprisonment for the 1st defendant.

16.  On the 2nd charge, the 1st defendant faces only one aggravating factor.  That will lead to a starting point for sentence of 39 months’ imprisonment.  After deduction of one-third for his plea of guilty leads to a sentence of 26 months’ imprisonment.

17.  Now, this defendant has committed two offences. They are committed at the same time in the same premises, effectively, or the same building, but I consider that some element of them must be served consecutively.  I am going to order that 5 months of the 2nd charge be served consecutively to the 1st charge, giving an overall total for the 1st defendant of 33 months’ imprisonment.

18.  The 2nd defendant faces a total of seven charges.  In all charges but the 4th charge there is one aggravating factor, and on the 4th charge there is a second aggravating factor.  Following the same calculation as I have in respect of the 1st defendant, that means that on the 4th charge the sentence after deduction for plea of guilty will be one of 28 months’ imprisonment.  And on the remaining charges of 3 through to 9, the sentence would be one, after deduction for plea of guilty, of 26 months’ imprisonment.

19.  This defendant faces a large multiple of charges that must be reflected in the sentence, the overall sentence.  As far as this defendant’s overall total sentence is concerned, I consider it should be one of 48 months’ imprisonment and I will achieve that by ordering that 20 months of charges of the sentence on 3, 5, 6, 7, 8 and 9 will be served concurrently to one another but 20 months of those sentences consecutively to the 4th charge gives a total of 48 months’ imprisonment.

20.  As far as the 3rd defendant is concerned, he faces the single charge jointly charged with the 1st defendant.  Following my earlier calculations in respect of the 1st defendant, that means that the sentence for the 3rd defendant after deduction of plea of guilty should be one of 28 months’ imprisonment. 

21.  The 4th defendant faces a single charge committed jointly with the 2nd defendant.  Again, after deduction for his plea of guilty, the end sentence for him should be one of 28 months’ imprisonment.  This defendant is currently serving a sentence of 2 years’ imprisonment.  He was sentenced on 28 May 2018 and the offence itself was committed, as I understand it, after this offence.

22.  His representative makes the clear point that if these offences had been sentenced together, then they would have been considered under the overall totality principle and that as these offences were committed closely together in terms of time, I should also adjust the element of what is consecutive, what is to be served consecutively or concurrently, to reflect that fact.  There is clear authority to say that is the correct approach.

23.  Given that this defendant is currently serving a sentence of 2 years’ imprisonment, which is what appears to be a standard sentence for burglary, and he has committed one further burglary, I consider that the overall sentence or in fact, I consider that to achieve the correct overall sentence for this series of offences would mean that I should order that 10 months of the existing sentence or 10 months of this sentence should be served consecutively to his existing sentence and the balance concurrently.