HKSAR v. HE JIANPING AND ANOTHER

DCCC947/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 947 OF 2012

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Reasons for Sentence

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1.  1st defendant, you have pleaded guilty to one charge of attempted burglary. 2nd defendant, you have pleaded guilty to one charge of burglary and another charge of attempted burglary.

2.  The 1st charge, D2, was a burglary committed on 7 June 2012.  You, together with three persons unknown, burgled a dried seafood shop in Des Voeux Road West, stealing various dried seafood valued at $1,351,892.  Also stolen was cash in the amount of $12,000.

3.  As respect the 2nd charge, that attempted burglary charge was committed on 3 August 2012 by the two of you, together with another unknown person, also targeting a dried seafood shop in Des Voeux Road West.

4.  For D2, in that burglary, the alarm system was set off and the CCTV footage seized from nearby shops captured you and three other males carrying large nylon bags walking in Des Voeux Road West at about 4 am.

5.  Found inside the premises was your right fingerprint on the outside of a glass bottle used to store dried birds’ nest.  D2, your left palm print was also found on the surface of the glass shelf inside the shop.

6.  In respect of the 2nd charge, on 3 August police officers patrolling that area at about 4.05 am saw the both of you and another unknown male outside the dried seafood shop.  One of you was seen lifting up the roller shutter of the shop.

7.  As soon as the police vehicle approached, you all fled the scene.

8.  You were eventually caught.  Another one escaped.

9.  Found outside of the shop was a crowbar and a screwdriver.

10.  Each of you was found with a pair of black gloves and a small black torch.

11.  Your solicitors, Mr Lee Kwok-lun and Miss Wong Tsip-yue for D1 and D2 respectively, have made full and thorough mitigation on your behalf.

12.  I have taken into account all they have had to say.

13.  D1, you are of clear record, 37 years of age and single.  You have come from Mainland China on a two-way permit, which permitted you to stay in Hong Kong for seven days.  You arrived in Hong Kong on 29 July and committed this offence five days later.

14.  For D2, you are also 37 years of age, from Mainland China, of clear record.  You had arrived in Hong Kong also on a two-way permit and were given seven days to stay.

15.  For Charge 1, you arrived on 4 June and left three days later on 7 June, the day you committed this offence.  In respect of the second offence, you arrived on 30 July and committed this offence four days later.

16.  Both your lawyers have said that you committed this offence out of financial need due to your dire circumstances in China.

17.  As for both of you, you have said to the court that you met one person called “Mr Kwong”, who invited you to come to work in Hong Kong, (though you know illegally), in a construction site; however, instead of illegal work you were asked to participate in these burglaries.  You did so in order to earn some fast, quick money.

18.  For D2, in respect to the second occasion, your solicitor has said you were offering no excuse but again, you needed money and that is why you committed this offence.

19.  Both counsel have recognised that the usual starting point for commercial premises burglary is one of 2½ years.

20.  Aggravating factors include factors such as whether the burglary is committed with a group of people and/or whether the value of goods is high.

21.  As for you, D2, another aggravating factor is the fact that you committed a similar, same offence less than approximately two months later.

22.  Defendants, I am told that your intention to come to Hong Kong was to work illegally.

23.  It is clear to me that soon after your arrival in Hong Kong, on both occasions, you committed burglary offences.  I do not accept that you came to Hong Kong to work illegally.  It is clear to me that you came to Hong Kong as two way permit holder to commit these offences.

24.  The burglaries on dried seafood shops, in my view, was deliberately planned and targeted because these shops have very high value goods.  It was well-planned in that there was more than one of you committing this offence.  The shops were targeted at both times at 4 am in the morning.  The shops were in Des Voeux Road West and of the same type of shop.  It is well-known that these shops, which stock these high value goods such as abalone, birds’ nest, scallops, are very high value goods.  It can be seen in the 1st charge, the value was extremely high, of some $1.35 million.

25.  A deterrent sentence must be passed to discourage people like you who deliberately come to Hong Kong to commit offences, particularly from China when you can escape and go across the border quickly after commission of the offence.  People like yourselves I am told can come and go on these two-way permits and stay for seven days can re-apply and come back again on numerous occasions.

26.  Defendants, for D2 first, I will deal with you.

27.  For Charge 1, the original starting point should be 30 months’ imprisonment after trial.

28.  However, in view of the fact that this offence was committed with a number of other persons, that starting point shall be increased by a further 3 months, a further aggravating factor is the very high value of goods at $1.3 million and that starting point shall be increased by a further 6 months to make the starting point at 39 months’ imprisonment had I convicted you after trial. I give you full credit for your plea of guilty, which is clearly your strongest mitigating factor, that term shall be reduced to one of 26 months’ imprisonment.

29.  For Charge 2, D2, again, I shall adopt the same starting point of 30 months, plus the aggravating factor of 3 months for commission of the offences with others.

30.  Taking a starting point of 33 months then and giving you full credit for your plea of guilty, that term shall be reduced to one of 22 months.

31.  These offences are of a similar nature but committed at different times.  It is admitted by you that you came to Hong Kong to deliberately commit the 2^nd offence.  Taking into account the principal of totality I consider that a partly concurrent and partly consecutive sentence is appropriate.

32.  In those circumstances, I shall order 10 months of Charge 2 to run consecutive to Charge 1, making a total term of 36 months’ imprisonment to which you shall be so sentenced. The remainder of the terms are to run concurrent to each other.

33.  D1, for Charge 2, I take the same starting point of 30 months, plus 3 months for the aggravating factor of the burglary committed by a group of people, which makes a starting point of 33 months imprisonment.

34.  Giving you full credit for your plea of guilty, that term shall be reduced to 22 months, to which you shall be so sentenced.