HKSAR v. ZHAI ZHITAO

DCCC 1054/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1054 OF 2013

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Reasons for Sentence

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1. Defendant, you have pleaded to three offences of burglary, each contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap.210, and to a single offence sort of remaining in Hong Kong, having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115.

2. You admitted the brief facts and I convicted you.

3. Briefly, what happened is as follows.

Burglary at House I-25 (Charge 3)

4. At around 1.40 am on 4 October of this year, the helper (PW1), who was asleep in the bedroom in the kitchen of House No. I-25, Phase I, Valias, 28 Kwu Tung Road, Sheung Shui was awakened by a dog barking. She saw a male near the kitchen door, so she called her employer, So Wai-wai Dorothy (PW2), informing her that a man had entered the premises.  PW2 then called the police.

5. At approximately 2.05 am, PC 3143 (PW3) and PC 6990 (PW4) arrived to investigate.

6. PW2 confirmed the loss of an ornament, two bracelets, a watch, a necklace with pendant, three rings, a brooch and a necklace, worth in total of about $1,341,000.

7. At about 2.20 am, PW3 and 4 found you hiding in bushes outside the premises.  You had a bag in your possession.  The officers revealed their police identity and searched the bag.  Therein, they found watches, ornaments and jewellery.  A search of your body revealed a used pair of labourer’s gloves, a black hood and two torches in your trousers.  You had no ID documents.

8. You told PW3 that you entered Hong Kong on the evening of 3 October 2013 from Shenzhen and went to three houses to burgle. You stole the bag from one house and put all the other stolen property into it. Hearing noise from Premises 1, you left by climbing a wall but hurt your feet jumping down.  You crawled to where PW3 found you.

9. Under caution, you admitted the property in the bag was stolen from three houses and you wore gloves and a hood.  You also used a torch.  You admitted coming to Hong Kong by walking.

10. Arrested and cautioned, you admitted again that the property in the bag was stolen.

Burglary at House I-20 (which is Charge 1)

11. On that day the police conducted door-to-door enquiries in the vicinity.  At 3.07 am, Lai Yiu-cheung (Pw5), the occupant of House I-20, discovered ransacking and a loss of 10 ornaments and a meat cleaver.  The total loss was valued at about $5,300.  PW5 confirmed that he and his family were asleep in the premises.

12. Later that day at 11.30 am, a Ko Cheuk-ming (PW6), the occupant of House I-28, Phase I, discovered a meat cleaver at the top of the boundary wall of his house.  PW5’s helper identified the meat cleaver as the one taken from the premises in the charge.

Burglary at House L-17 (Charge 2)

13. At about 5.45 am, Hui Mei-chun (PW8), the occupant of L-17, discovered the sliding door of the third premises to be opened and ransacking had occurred.  She confirmed the loss of two watches, HK$500 and a bag, with total value of $160,800.  Her family too was asleep at the time.

14. In fact, all property lost by PW2, PW5 and PW8 were subsequently retrieved from you.

15. In video recorded interviews under caution later that day and on the next day, you made full admissions to all offences, including illegally sneaking into Hong Kong, committing burglaries.  However, you did deny having taking a meat cleaver from the second premises.

16. You are man of hitherto clear record.  Mr Cheng, on your behalf, prepared and presented very helpfully written mitigation. 

17. The gist of what he told me is as follows.

18. You are 25, educated to P3, married with a son of 4.  Since your remand, your wife has had to find work to care for the family.  Prior to arrest, you worked as a salesman, earning some RMB2,000 per month.  However, school fees have increased to RMB1,800 per month, so you came to Hong Kong hoping to find work.

19. You arrived on 3 October last and walked for five hours, then came to a village where you committed these offences out of greed.

20. Mr Cheng stressed your plea of guilty and cooperation with the police from the outset.  He told me that in 2005 you injured your right leg seriously in a car crash and on this occasion when you jumped from the wall you broke both legs.

21. He pointed to various points of mitigation:

(1) no property was lost;

(2) you are not a professional burglar;

(3) you are of clear record;

(4) you acted alone;

(5) the victims were neither elderly nor young;

(6) you offered no violence;

(7) you used no weapon; and

(8) you were cooperative with police.

22. Realistically and properly, Mr Cheng accepted that it was an aggravating feature that this took place in the early hours of the morning and that the value of the goods could not be said to be low.

23. He reminded me of the sentencing authorities for both types of offence.

24. Finally, he presented a letter which you had written, expressing your remorse and worry for your family.

25. On your behalf, he asked for leniency and the application of the principle of totality.

26. I turn now to the sentence.

27. You are a young man of clear record.  I accept that these burglaries were opportunistic rather than planned.  I also accept that you were cooperative with the police from the outset and have now pleaded guilty to all offences.

28. It is of great importance in mitigation that all goods were recovered and nothing was actually lost by the house-owners.

29. Of course, I note the lack of violence.

30. I also note that it is some aggravation that these offences were committed in the early hours of the morning and that a large amount of money was involved and large value goods, which, of course, as we know, were recovered.

31. I, therefore, intend to impose the standard sentences in each case.

32. In respect of Charges 1, 2 and 3, on each charge, I take as a starting point 3 years’ imprisonment, reduced to 2.

33. To apply the principle of totality, on Charge 2, 6 months will be consecutive and 18 months concurrent, the 2 years on Charge 3 will be wholly concurrent and, on Charge 4, I impose the normal tariff of 15 months’ imprisonment, consecutive to the previous sentences.

34. That is a total of 45 months’ (3 years 9 months) imprisonment.