HKSAR v. LI TIANYOU

DCCC 88/2020

[2020] HKDC 913

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 88 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary.

2.  This burglary relates to a domestic premises and was committed on 28 November 2019 in the area of Pat Heung in the New Territories.  The premises is a residential unit occupied by two witnesses.  In the morning of 28 November 2019, the premises were left secure.  When the residents returned at about 7 o’clock in the evening, they saw torchlight flashing inside the premises and the defendant was seen to jump out of the premises.  The defendant was subdued in the vicinity of the premises. 

3.  The police were informed and came and arrested the defendant.  A screwdriver and a pair of gloves were found, which obviously assisted the burglary.  The defendant was carrying a rucksack and all the stolen property was found within the rucksack.  The defendant said he committed the offence out of greed, that he had entered Hong Kong on the same day without any money, and he admits the offence.

4.  The defendant is aged 24 and has no criminal record in Hong Kong, been working as a farmer inside China.  All his family live in China, and that he, because of the incarceration of his brother, is the only person capable of earning a living out of his family, and it is said that his reasons for committing the offence relate to the financial burden of his family. He came to Hong Kong looking for odd jobs.  Of course, he cannot work legally in Hong Kong.

5.  It is said in mitigation that none of the normal aggravating factors exist in this case.  The method in which the burglary was committed is fairly commonplace and was committed alone by the defendant, and that he has a clear record in Hong Kong.

6.  The time in which the offence was committed meant that at the time when the defendant was inside the premises there was no one inside the premises - it was empty - and that is said that would mean that the occupiers would not be put at risk for their personal safety.  It is said that that, combined with the fact that all the stolen property was recovered, provides mitigation.

7.  And, of course, it is well known that the starting point for a domestic premises burglary by a person of clear record after a plea of not guilty will be one of 3 years’ imprisonment. 

8.  None of the what I would describe as conventional aggravating factors associated with burglary are present in this case. 

9.  However, it could be inferred from the facts the defendant came to Hong Kong to commit the burglary.  He committed the burglary on the same day he entered.  That can be seen by the court to be an aggravating factor and lead to an enhancement of sentence.

10.  Set against that, of course, is the fact that all the stolen property was recovered and the burglary was committed in what was at the time ostensibly an empty property.  I consider that, in fact, in relation to this case, those two factors cancel each other out, leaving us again with the conventional starting point for sentence of 3 years’ imprisonment.

11.  The defendant has pleaded guilty.  He is entitled to a one-third discount from that sentence.  So the sentence now imposed will be one of 2 years’ imprisonment.