HKSAR v. JIAN MINGJIAN AND ANOTHER

DCCC 187/2024

[2024] HKDC 1892

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2024

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REASONS FOR SENTENCE

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1.  D1 and D2 are both convicted of a charge of conspiracy to burgle, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

Facts

2.  Since October 2015, PW1 started renting a tent at Tin Lung Wui Carpark in Lok Ma Chau. The tent was used for storing goods and a CCTV was installed inside the tent.

3.  At 3:40 am on 9 September 2023, PW1 remotely checked the CCTV of the tent. As he could not see anything from the footage, he rewound the footage and saw at 2:56 am on the same day, a Chinese male (later known to be D2)  enter the tent. At 2:59 am, D2 turned the CCTV to the side and nothing could be seen from the footage afterwards.

4.  CCTV installed at the tent captured part of the incident as described, and PW1 immediately reported the case to the police.

5.  Around 4:10 am on the same day, PW1 went to the tent. The door lock of the tent was undamaged, but the tent was cut open. The cost of repair of the tent was HK$5,000. The CCTV of the tent was removed, but it could be reinstalled.

6.  Upon checking, PW1 confirmed that items went missing, the total value of which is around ¥432,561 Renminbi.

7.  Later on the same day, police officers arrived at the carpark. They found around 20 opened and empty paper boxes and an opened luggage at the back of the tent. There was also a ladder at the back of the tent.

8.  At 4:45 am, police saw a taxi passing by and they followed the taxi until the taxi stopped. Two males alighted the taxi and police disclosed their police identities. The two males fled and the police chased them. Later, D1 was intercepted. Body search on him found a 13-cm long yellow cutter, three masks, a lighter and a pack of cigarettes. None of the stolen property was recovered.

9.  A video-recorded interview was conducted on D1 for the offence of burglary on the same day. Under caution, D1 said, inter alia, that:-

(a)  He entered Hong Kong with his friend around midnight on 9 September 2023. He then took a taxi to a park in Yuen Long. He brought with him two luggage and his friend brought with him one luggage.

(b)  He helped moving boxes which his friend took from the tent and putting them into the luggage. Afterwards, they took a taxi and put the goods in a playground in Yuen Long.

(c)  His friend promised to give him some money.

(d)  The cutter seized on him was given to him by his friend.

(e)  He confirmed that his friend was probably the person being captured in the CCTV inside the tent.

10.  The dial record on D1’s phone showed that at the time D1 had multiple calls and text messages with a phone number which was later confirmed to be the phone number of D2.

11.  On 5 November 2023, D2 was arrested and two phones were seized on him. In the video-recorded interviews, D2 admitted under caution, inter alia, that he was one of the males captured in the CCTV in the tent, and that he was the user of the phone which had WeChat contact with the phone of D1.

12.  According to immigration records, on 9 September 2023 as two-way permit holders:

(a)  D1 entered Hong Kong at 1:23 am;

(b)  D2 first entered Hong Kong at 1:22 am and left at 6:31 am; and

(c)  D2 re-entered Hong Kong at 11:32 am and left at 9:19 pm on the same day.

Criminal record

13.  Both defendants have clear record in Hong Kong.

Mitigation

D1

14.  D1 is aged 41. He is a mainlander and has received education up to middle secondary school level. He is married with two sons, aged 9 and 7.

15.  Defence counsel submitted that D1 committed the present offence out of stupidity and is now deeply remorseful. He also stressed that D1 used to have a clear record and that the chance of his reoffending is very remote. He submitted there is no violence or serious damage resulted and that D1 has pleaded guilty saving court’s time.

16.  Defence counsel conceded that the sentencing starting point for burglary of a non-domestic premises is 30 months’ imprisonment.

17.  He also handed to court mitigation letters from D1’s elder sister and his wife. They said that D1 had been misled by a friend and had committed the offence foolishly. D1 used to be honest and law abiding. Because of the mistake of D1, the elderly parents of D1 were left in anxiety and ill health, awaiting D1’s return. Family finance has also deteriorated, and D1’s wife had to go out and work to earn a living for the family. They promised to take tighter control on D1 so that he would behave properly and not to reoffend in future.

D2

18.  D2 is aged 30. He is a mainlander. He is divorced and used to be a construction site worker earning around ¥4,500 Renminbi per month. He has two sons aged 6 and 7, and he lives with his parents. He has received education up to Form 1.

19.  Defence counsel conceded that the sentencing starting point for a non-domestic premises burglary is 30 months’ imprisonment, and that a certain degree of planning and premeditation has been built into this sentencing starting point, and this can be adjusted upwards if there are aggravating features.

20.  Defence counsel submitted that whilst they concede 30 months’ imprisonment as the sentencing starting point, there is no evidence to show that the offence is well planned or skilfully executed involving the use of heavy instrument or equipment.

21.  Defence counsel accepted that D2 committed the offence together with another, and urged this court not to enhance the sentencing starting point by more than 3 months’ imprisonment. He submitted that there is no evidence to show that D2 is a professional burglar, or that he came to Hong Kong primarily for the commission of the offence. However, if the court finds otherwise, he urged this court not to enhance the sentencing starting point by more than 3 months.

22.  It is also submitted that D2 is entitled to the full one-third sentencing discount by reason of his timely plea.

23.  He urged this court to deal with D2 leniently as he is the main carer of his two sons and his parents. D2 vows not to reoffend and handed to court his mitigation letter.

Discussion

24.  Before sentencing, this court has carefully considered all that was said on behalf of the defendants, as well as the mitigation letters and the cited authorities.

25.  As conceded by defence counsel, it is well established that the appropriate sentencing starting point for burglary of non-domestic premises, in the absence of aggravating or extremely strong mitigating factors, is that of 30 months’ imprisonment. (HKSAR v Sim Ka Wing, CACC 450/2000)

26.  Each defendant here acted together with one other. This amounts to an aggravating feature in sentencing and the starting point is enhanced by 3 months.

27.  There was an absence of sophistication even though there was planning in the commission of the offence. It is noted, however, that the defendants had used tools to cut open the tent and possibly a ladder in the commission of the offence, and further, they would have knowledge that this tent would contain or store something valuable.

28.  CCTV footage of the tent indicated that the burglary occurred at around 2:56 am. Records from the Immigration Department showed that both defendants entered Hong Kong probably together at around 1:22 am on the same day. They have therefore committed the offence within a very short time after their arrival in Hong Kong, which supports their primary purpose of coming to Hong Kong being to commit the offence.

29.  Further, they did not have much cash or means of payment on them at the time of interception. Therefore, they did not intend to have a stay for considerable length in Hong Kong. This court does not accept that they come to Hong Kong at these early hours for sightseeing.

30.  Both defence counsel have indicated that their clients elected not to proceed with Newton hearing to resolve the issue. The court in the circumstances would consider both defendants coming to Hong Kong for the primary purpose of committing the offence. This amounts to an aggravating feature in sentencing and the court will enhance the sentencing starting point by 5 months’ imprisonment.

31.  According to D1, he brought two luggage with him when he came to Hong Kong. This luggage was not found on him when he was intercepted. It must have meant that shortly after the commission of the offence, the defendants had immediately disposed of the stolen property, as D1 in his video-recorded interview admitted. D1 also had a cutter on him upon being intercepted by police. As this court has earlier said, it is probable that the same was used in cutting open the tent.

32.  The burgled tent was locked and situated in a carpark. Clearly, the offence was not an opportunistic one. From the preparation by the defendants and the commission of the offence, it is a well-planned operation though not with sophistication. They targeted the tent clearly as a result of information as to what was stored inside.

33.  The value of stolen property is around ¥432,561 Renminbi and the cost of repair of the tent was HK$5,000. The loss to the victim is substantial. Both defendants did not return any property stolen or offer compensation to the victim.

34.  Having considered the circumstances of the case, the sentencing starting point for both defendants in this case is 38 months’ imprisonment. The defendants have pleaded guilty and are therefore entitled to the full one-third sentencing discount. They are each sentenced to 25 months and 10 days’ imprisonment.

35.  As for the application for compensation order, as the court is not fully aware of the means of the defendants, this court is reluctant to make the order.