HKSAR v. MIAO WENLUE

DCCC 560/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 560 OF 2013

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to one offence of attempted burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. You also pleaded guilty to two offences of unlawfully remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

2.  You admitted the Brief Facts.  I convicted you on those three offences.  You pleaded not guilty to one offence of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap 210.  That was ordered to be left on the file and not to be proceeded with without leave of this court or the Court of Appeal.

3.  The Brief Facts were as follows.

Charge 1, Attempted burglary

Ali’s Luxury Bags Shop was situated at Room E, Po Ming Building, 96-106 Percival Street, Causeway Bay. At about 7 pm on 9 February of this year, a staff member locked the door and activated the burglar alarm before he left. Thereafter, the shop was closed for Chinese New Year. At about 8.45 am on 11 February, the caretaker saw an unknown man wandering around. She made inquiries with the unknown man. That man left, and she found that the burglar alarm of the shop was cut off. Burglary equipment, namely padlocks, gloves, screwdrivers, a hammer, carry bags, crowbars, pliers, were found inside a luggage which was discarded at the front door of the shop. There were prise marks on the front door of the shop. The padlock of the shop was damaged. A member of staff of a nearby restaurant saw three unknown men, who fled via the rear entrance of the building.

4.  You and two unknown men were captured on the CCTV of the shop.  In short, you and two other persons attempted to burgle the shop on 11 February.

Charge 2, Unlawfully remaining

5.  Defendant, you unlawfully entered Hong Kong before the incident in Charge 1.  You remained in Hong Kong without the authority of the Director of Immigration on 11 February of this year.  After the commission of the offence, you left Hong Kong.

Charge 4, Unlawfully remaining

6.  In a video-recorded interview under caution on 6 March of this year you told the police how you came to Hong Kong from the mainland unlawfully on 4 March on a speedboat from Shekou.  You arrived at Lau Fau Shan at about 10 pm on that day.  You took a taxi then to Yuen Long, where you met up with a friend.  That friend asked you to go to Causeway Bay, which you did.  You therefore remained in Hong Kong on 5 March without the authority of the Director of Immigration.

7.  You admitted to four previous convictions on three occasions, one of which was similar. 

8.  On your behalf, Mr Tam entered mitigation. I am very much obliged to him for reducing that mitigation to writing.  That is extremely helpful.  He dealt first of all with your background.  He told me that you are 33 years of age, you were born in mainland China, and you are married.  You have one daughter, who is aged 3, and your wife is a housewife.  Prior to arrest, you were working as a decorator on the mainland, earning about 2,000 Renminbi per month.  You are the sole breadwinner of the family.  You are educated to Primary 6 level.

9.  The main areas of mitigation were first of all your plea of guilty and you are deeply remorseful for what you have done.  Upon arrest you were co‑operative with the police.  You committed the offence out of momentary greed.  You faced financial difficulties in the mainland and your friend invited you to go to Hong Kong to earn quick money.  If the entry in respect of Charge 1 had been successful, you would have received 5,000 Renminbi.  However, the shop lost nothing, and you have received no reward. You promise not to commit these offences again.  Mr Tam makes the point that you will be going to gaol and that that will be a great hardship to be parted from your family.  You understand the seriousness of these offences. Mr Tam invites me to make all sentences concurrent.  With reference to your record, the charge under the third conviction, which is two charges, he says arose because of your own admission whilst in prison.  Finally, Mr Tam asks me to be as lenient as possible.

10.  I turn now to the sentences themselves.  Whilst it is a well-established fact that in circumstances like this, the sentences should run consecutively, however, there is always room and discretion to apply the totality principle.

11.  The main point in mitigation that I can see is your plea of guilty, and I accept that you were co-operative with the police. I note your previous convictions, especially one similar.  I also note the hardship that you will face in gaol, being separated from your family.

12.  The most serious of the three offences is of course the 1st charge, but nothing was actually taken.  This was an attempt, not a complete offence.  The following sentences will be imposed.

13.  In respect of the 1st offence, I take as a starting point 27 months’ imprisonment, reduced to 18 months for your plea of guilty.  In respect of the 2nd offence, you will go to prison for 15 months, which will be consecutive.  In respect of the 4th offence, you will go to prison for 15 months, but that will be concurrent, to apply the principle of totality, and out of mercy.

14.  You will therefore go to prison for a total of 33 months.