HKSAR v. LIAO JIAHENG AND OTHERS

DCCC 364/2023

[2024] HKDC 697

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 364 OF 2023

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REASONS FOR SENTENCE

D1 faces 2 charges of "Burglary" (Charges 1 and 2)  and one charge of "Unlawful remaining" (Charge 5). D2 faces one charge of "Unlawful remaining" (Charge 6). D3 faces one charge of "Unlawful remaining" (Charge 7). D1 and D3 are jointly charged with an offence of "Conspiracy to burgle" (Charge 3). D1 to D3 are also jointly charged with an offence of "Handling stolen goods" (Charge 4).

2.  D1 pleaded guilty to Charges 1, 2, 3 and 5.  D2 pleaded guilty to Charges 4 and 6.  D3 pleaded guilty to Charges 3 and 7.  I granted the prosecution's application to leave Charge 4 against D1 and D3 in the court file; not to be proceeded against them without leave of court.

Summary of Facts

Incident 1 (7 May 2022)

3.  Flat 304, No.7C Bowen Road, Central ("Flat 304")  was burgled on 7 May 2022.  Two safes, which were originally placed in the master bedroom, were moved to the children's room.  One of the safes was damaged and opened. Jewelleries contained in it (valued at $3 million in total)  were stolen.  The other safe was damaged but not opened.

4.  CCTV footage revealed that about 1:50 a.m. on 7 May 2022, a male climbed into Flat 304 through a window.  He moved the 2 safes into the children's room and prised open one of them.  He put the contents of that safe in a bag and left through the window.

Incident 2 (6 June 2022)

5.  The residential flat as particularized in Charge 1 ("Flat 8B")  was burgled between 10:30 a.m. on 5 June and 10:30 a.m. on 6 June 2022.  HKD30,000 cash, USD2,000 cash, a gold ring (valued at $3,000)  and 2 pocket watches (valued at $2,000 each)  were stolen.  A safe, which was originally placed in the wardrobe in the master bedroom, was moved onto the bed.  Prising marks were found on the safe but it was not opened.

Incident 3 (6 June 2022)

6.  The residential flat as particularized in Charge 2 ("Flat 7B")  was burgled in the morning on 6 June 2022.  A safe placed in the master bedroom was prised open.  Prising marks were found on its door edge near the latch bolt.  A shoe print was found on its door ("the Safe's Door").  HKD62,400 cash, 10 watches, 34 jewellery items and 4 handbags were stolen.  The repair costs of the safe was about $30,000.

Incident 4 (6 June 2022)

7.  The residential flat as particularized in Charge 3 ("the 8^th Floor Flat")  was suspected to be a target of burglary.  About 9:00 a.m. on 6 June 2022, one of its residents (PW9)  was watering the plants at the 8^th Floor Flat.  PW9 found a rope having been tied to the balcony fence.  The rope was about 40m long and 4-5cm in circumference; and it reached all the way to the Ground Floor.  No property was stolen and no damage was found.

Discovery of police patrol

8.  About 9:45 p.m. on 17 June 2022, PC 11894 (PW20)  and his colleagues were patrolling near Magazine Gap Road Reservoir.  PW20 saw a topless man looking at the nearby buildings.  He ran away and jumped down a slope when approached by PW20.

9.  Police officers searched the area.  On the slope from where the topless man had jumped (near grid reference 50QKK0778465652), a green jacket and a black head cover were found.

10.  About 90 metres away, on Borrett Road (near grid reference 50QKK0781765714), the Police found a backpack ("the Backpack")  which contained 2 screwdrivers ("the Screwdrivers"), a foldable saw, a Nike waistbag ("the Waistbag"), 2 bottles of water ("the Water Bottles")  and a bag of food from Hoixe Cake Shop ("the Food").

11.  On Borrett Road, near Bowen's Lookout (i.e. the location of Incident 4), the Police found the external metal fence of the estate having been cut open.  A metal pipe of about 30m long, which was made up of 3 to 4 metal tubes linked together ("the Metal Pipe"), was erected on the slope and tied to a tree.  It reached up to the balcony of the 8^th Floor Flat.

Arrest of D1 to D3

12.  According on the sales records on Hoixe Cake Shop, the purchase of the Food was made at 6:04 p.m. on 16 June 2022 at its branch situated at No.116 Johnston Road, Wanchai, using an Octopus Card No.62860222 ("the Octopus Card"). Another purchase at the same branch was made at 5:41 p.m. on 9 June 2022 using the Octopus Card.  CCTV footage captured D1 making these purchases.

13.  Tracing of the Octopus Card's transaction records and CCTV footage revealed that D1 to D3 frequently appeared in To Kwa Wan.  They were seen walking together on the streets in that district.

14.  In the afternoon on 8 July 2022, police officers intercepted D1 and D2 near To Kwa Wan Complex Playground.  DPC 18865 arrested D1 for "Burglary".  Under caution, he said in Putonghua that he came to Hong Kong to steal things because he had no money.  DPC 15463 arrested D2 for "Burglary".  He remained silent under caution.  No identity documents were found on D1 or D2.

15.  About 5:20 p.m. on the same day, police officers entered Unit C, 1^st Floor, Block K, No.1 Lok Shan Road, To Kwa Wan ("the Flat").  D3 was found sleeping on a bed in the Flat.  DPC 33575 arrested D3 for "Burglary".  He remained silent under caution.

16.  The Flat was searched and the following items were found :-

(i)  Under a bed, an orange bag ("the Orange Bag")  which contained 6 screwdrivers, 2 wrenches, a folding knife, 2 ropes and a pair of gloves; and

(ii)  Near a sofa, a black bag ("the Black Bag")  which contained 3 smaller bags, each containing various items of jewellery. A total of 42 items of jewellery, 2 pocket watches and 4 handbags were found. Most of them were stolen items in Incidents 1 to 3. In particular, 8 items of jewellery (valued at $400,000 in total)  were stolen from Flat 304 in Incident 1. A gold ring and 2 pocket watches (valued at $7,000 in total)  were stolen from Flat 8B in Incident 2. 31 items of jewellery (valued at about $1 million in total)  were stolen from Flat 7B in Incident 3.

Forensic examination

17.  D1's DNA was found on the Safe Door in Incident 3.  One of the Water Bottles (contained in the Backpack found on Borrett Road)  contained a mixture of D1's and D3's DNA.  D1 to D3's DNA was found on various items seized from the Flat.

18.  Tool marks on the Safe Door in Incident 3 were made by the Screwdrivers contained in the Backpack found on Borrett Road.

19.  The shoe print on the Safe Door in Incident 3 matches the shoes worn by D1 at the time of his arrest.

20.  D1 to D3's fingerprints were found inside the Flat.  D2's fingerprint was found on the outside of one of the 3 bags contained in the Black Bag found in the Flat.

Video recorded interviews (VRIs)

21.  In his VRIs, D1 admitted having entered Hong Kong in early May 2022 illegally by climbing over the fence at Sha Tau Kok.  Whilst staying in the Flat, D1 saw the Black Bag and the jewelleries contained inside.  He once took out all the jewelleries, looked at them and put them back.  D1 has also noticed the Orange Bag and smoked the cigarettes contained inside.  D1 identified himself in the CCTV screenshots.

22.  In his VRIs, D2 admitted having entered Hong Kong illegally in late May 2022 by climbing over the fence at Sha Tau Kok.  On 15 June 2022, D2 encountered D1 and D1 invited him to live at the Flat.  Whilst staying in the Flat, D2 saw the Orange Bag and had tidied up the tools contained inside.  D2 identified himself in the CCTV screenshots.

23.  In his VRIs, D3 admitted having entered Hong Kong illegally in late June 2022 by taking a boat from Zhuhai.  He identified himself in the CCTV screenshots.  D3 identified both the Waistbag and the Backpack (found on Borrett Road)  as his properties.  He claimed that D1 took both bags from him when they went hiking and has never returned them to him.  D3 denied knowledge of the contents in both bags.

Mitigation

D1

24.  He is 44 and has 1 conviction record, which is "Attempted burglary" (dated 2014).  His counsel Ms. Lee informed me that D1 is divorced with 2 children (aged 15 and 6).  D1's parents look after them now.  In mitigation, Ms. Lee submitted that D1 was in debt (RMB150,000)  for his own business due to the pandemic.  He committed the present offences because of financial difficulties.

D2

25.  He is 44 and has 1 conviction record, which is "Attempted burglary" (dated 2016).  His counsel Mr. Chiu informed me that D2 is single and was educated up to Primary 5 only.  In mitigation, Mr. Chiu submitted that D2 was not involved in any of the burglaries in this case.  The extent of his handling of the stolen goods is limited.

D3

26.  He is 40 and has a clear record.  His counsel Mr. Cheng informed me that D3 is married with 2 daughters (aged 13 and 2).  D3 was a construction worker earning about RMB3,000 per month, but became unemployed in June 2022.  In mitigation, Mr. Cheng submitted that D3 has been remanded in jail custody since July 2022.  He wishes to go home to his family and start his life afresh as soon as possible.

Sentence

27.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.  D1 to D3 all purposely came to Hong Kong through illegal means to commit crimes.

28.  The normal starting point for domestic burglary is 3 years' imprisonment.  I note that D1 had acted alone in Incidents 2 and 3 (i.e. Charges 1 and 2); whereas D1 and D3 had acted in concert in Incident 4 (i.e. Charge 3).  Bearing in mind that each burglary in this case (not counting Incident 1)  was committed on the same day in the same neighbourhood[1], I would increase the starting point of each burglary charge to 37.5 months.  I also note that the value of the stolen properties in Incident 3 (i.e. Charge 2)  was significant.  Fortunately, most of them were recovered from the Flat.  I would not increase the starting point for Charge 2.

D1

29.  I would not treat him as a repeated offender.  For Charges 1 to 3, I adopt 37.5 months' imprisonment each as the starting point.  With the timely guilty plea, the sentence for each charge is reduced to 25 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 25 months' imprisonment for each charge.

30.  Bearing in mind the totality principle, I consider a global starting point of 51 months appropriate for Charges 1 to 3.  With the timely guilty pleas, the overall sentence becomes 34 months.  Hence, I order 4 months in Charge 2 to run consecutive to Charge 1; and 5 months in Charge 3 to run consecutive to Charges 1 and 2.

31.  For Charge 5, the usual starting point is 22.5 months' imprisonment.  With the timely guilty plea, I sentence D1 to 15 months' imprisonment for this charge.  The sentence for Charge 5 should be served consecutive to the sentences for all other charges[2]. In order to reduce the harshness, I order 3 months in Charge 5 to run concurrent with the sentence for all other charges.  In other words, the total prison term for D1 in respect of Charges 1, 2, 3 and 5 is 46 months.

D2

32.  Regarding Charge 4, I have borne in mind the sentencing principles stated in R v Webbe (Bernard) [2002] 1 Cr App R (S)  22(adopted and applied in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360).  The value of the stolen properties found in the Flat was significant.  I adopt a starting point of 2.5 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 20 months' imprisonment for this charge.

33. For Charge 6, I sentence D2 to 15 months' imprisonment. In order to reduce the harshness, I order 3 months in Charge 6 to run concurrent with the sentence for Charge 4. In other words, the total prison term for D2 in respect of Charges 4 and 6 is 32 months.

D3

34. I treat his guilty pleas as timely. I adopt 37.5 months' imprisonment as the starting point for Charge 3. With the guilty plea, the sentence is reduced to 25 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 25 months' imprisonment for this charge.

35. For Charge 7, I sentence D3 to 15 months' imprisonment. In order to reduce the harshness, I order 3 months in Charge 7 to run concurrent with the sentence for Charge 3. In other words, the total prison term for D3 in respect of Charges 3 and 7 is 37 months.