HKSAR v ZENG LONG

DCCC 199 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of the 1^st charge of burglary and the 2^nd charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

Facts

2.  The facts admitted by the defendant are as follows:

(i) PW1 lived at a two-storey village house at No.41A Mo Tat New Village, Mo Tat Wan, Lamma Island (the “House”) with his family members.

(ii) At about 10:50 am on 17 January 2012, PW1 secured the doors of the House and left with his family members. At about 6 pm on the same day, PW1 returned to the House and found the defendant sleeping on his bed on the 1^st floor of the House. PW1 tried to wake the defendant up but the defendant made no response. PW1 then went to his neighbor (“PW2”) and his landlord (“PW3”) for assistance.

(iii) PWs 1 to 3 returned to the House. PW3 woke up the defendant and asked the defendant why he was in the House. Without making any response, the defendant immediately picked up PW1’s rucksack (valued at HK$1,500) and fled by walking downstairs towards the main door of the House. PW1 tried to stop the defendant but the defendant rushed out through the glass door. As such, the glass door was smashed by the defendant. PWs 1 and 2 gave chase.

(iv) Finally, at the hill path near a refuse collection point which was about 20 metres away from the House, PW1 found the defendant and had a struggle with the defendant. PW1 managed to retrieve his rucksack but the defendant managed to escape. In the meantime, PW2 made a report to the police.

(v) In the rucksack retrieved by PW1 from the defendant, an “Apple” ipod (valued at HK$1,000), an umbrella (valued at HK$100), a notebook computer adapter and 8 rings (valued at HK$100 in total) were found. All those items belonged to PW1. Some of the defendant’s clothing was also found from the rucksack.

(vi) At about 7:35 pm on the same day, PC12056 stopped the defendant at Sok Kwu Wan Playground. Upon body search on the defendant, cash of €140.82 was found from defendant. Upon questioning, the defendant admitted inter alia that the foreign currencies were stolen from someone’s house and that he had entered someone’s house.

(vii) In a subsequent interview, the defendant admitted that:

(a) he had sneaked into Hong Kong from Huanggang, Shenzhen on the evening of 14 January 2012;

(b)on 17 January 2012, he went to Lamma Island; and

(c) as he had no money to go back to China, he entered the House to steal things.

The defendant’s previous conviction record and antecedents

3.  The defendant has no previous criminal conviction record in Hong Kong.

4.  He was born in the Mainland in November 1990. He is now 21 years old. He has received education up to primary six level. After completion of primary education, the defendant has been working as a factory worker. He is single and used to live with his grandfather and younger sister in the Mainland.

Mitigation

5.  Ms Tam submitted that the only mitigating factors in this case were the defendant’s clear record and his guilty plea.

6.  Ms Tam also submitted that the normal starting point for the 1^st charge was 3 years’ imprisonment, and that the sentence for the 2^nd charge after plea was 15 months’ imprisonment.

Sentencing authority

7.  In HKSAR v Lau Pang [2004] 3 HKLRD 565, it was held that 3 years’ imprisonment was the proper starting point for a first offender of full age in a case of domestic burglary. The Court of Appeal in Lau Pang also confirmed that (i) a term of 15 months’ imprisonment after plea had been settled as the appropriate starting point in relation to the offence of unlawfully remaining in Hong Kong; and (ii) the sentence for burglary should be consecutive to the sentence for the immigration offence.

Sentence

8.  Having considered the facts of the present case, the submissions advanced by Ms Tam and the sentencing authorities, I adopt a starting point of 3 years’ imprisonment for the 1^st charge. In light of the defendant’s guilty plea, I give him one-third discount thus reducing the sentence to 2 years’ imprisonment for the 1^st charge. In relation to the 2^nd charge, I apply R v So Man King [1989] 1 HKLR 142 and Lau Pang, and sentence the defendant to 15 months’ imprisonment after having taken into account his plea.

9.  In relation to the defendant’s clear record, the Court of Appeal said in Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577 that the judge erred in granting an accused who pleaded guilty an additional discount “to take account of her good character”. In HKSAR v Yung Wai Siu [2001] 1 HKLRD 277, Deputy High Court Judge To (as he then was) considered the discount for a guilty plea already has “built into it an allowance for good record where there is one”. I therefore do not consider the defendant’s previous clear record should entitle him any further discount from the one-third I have given him for his guilty plea.

10.  There being no further mitigating features justifying any further reduction in sentence, the defendant is sentenced to 2 years’ and 15 months’ imprisonment for the 1^st and 2^nd charges respectively.

11.  On totality, I apply Lau Pang and HKSAR v Cheung Siu Wai CACC 426/2003 and order the two sentences in the present case to run consecutively, thus making a total of 3 years and 3 months’ imprisonment.