HKSAR v. HO PAN WING (also known as He Pinrong)

DCCC 291/2018

[2018] HKDC 975

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 291 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two counts of burglary. The first burglary is dated 5 November 2011. He entered a flat in Tung Shan Terrace in Happy Valley. The tenants were away, and the defendant entered in the middle of the night but the domestic helper was actually in the premises but asleep in bed. Luckily, she did not wake up. The defendant stole $63,240 worth of valuables. When the domestic helper woke up the next morning, she found a bedroom ransacked and an opened can of coke in the kitchen. This meant the defendant had walked around the premises. He could easily have confronted the helper in the middle of the night. This is an aggravating factor.

2.  The 2nd charge took place between 2 January and 7 January 2012.  The victims of the premises in May Tower on the 11th Floor, May Road were away.  The defendant entered sometime between those dates.  When the victims came home, they found the premises ransacked and $312,000 worth of valuables stolen.  The police found that a kitchen window had been prised open, and they also found a chocolate wrapper on the kitchen floor.  The victims suffered a significant loss in monetary terms which can also be construed as an aggravating factor.

3.  The defendant left his DNA on both the coke can and the chocolate wrapper.  At a later stage, the police matched the defendant’s DNA to those items and arrested the defendant in September 2017.  When they arrested the defendant, he was serving a 62-month term of imprisonment.  In March 2017, he had been sentenced by the District Court to 62 months for 10 burglary offences and an immigration offence, he entered Hong Kong illegally.

4.  The defendant had another court appearance and that was in 2007 where he appeared in the District Court and was convicted of seven burglary offences and three remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully and was sentenced to a total of 43 months’ imprisonment.  After serving that term of imprisonment, he was released on 9 April 2009.  The relevance of that date will become apparent.   

5.  In mitigation, I have heard that the defendant is 40 years old.  He comes from mainland China and is a farmer and the sole breadwinner of his family.  He is married with two children.  His daughter is about to start university this September, and his son is still in primary school.  He has been coming to Hong Kong for the last 10 years or so because of financial reasons.

6.  Miss Lau has said all she can say in mitigation on behalf of the defendant.  His best mitigation is his plea of guilty.

7.  I have read the reasons for sentence for the defendant’s last conviction in DC 1101 of 2016.  He pleaded guilty and was sentenced on 2 March 2017.  From those reasons, I can see that the dates of those 10 burglary charges range from between 2 December 2009 to 22 May 2016, just before his arrest on 24 May 2016.  It was noted by the sentencing judge that the defendant had been released after serving his sentence for DC 1159/2006 on 9 April 2009, and he sneaked back into Hong Kong illegally and committed the first of those 10 burglaries on 2 December 2009 in the very same year.  He found that an aggravating factor and took a 3-year-and-6-month starting point for all 10 of those burglaries.

8.  The usual starting point for a burglary of a domestic premise is 3 years if there are no aggravating or mitigating factors.  I can understand why the sentencing judge in the defendant’s last case took that higher starting point.  The defendant came back to Hong Kong very soon after his release from prison to commit 10 more similar offences over a period of five or six years.  These two burglaries in this case were also committed during that time but were not detected by the police when they were investigating the defendant earlier.  I will take that in account.

9.  I too like the sentencing judge in the last case will take a starting point of 3 years and 6 months for Charges 1 and 2.  I find there are other aggravating factors which I have already mentioned. 

10.  You have pleaded guilty and you are entitled to a discount of one-third for your plea.  When that discount is applied, it will reduce the starting point to 28 months for each charge.  The question after that is: how do I apply the totality principle to take into account that these two charges were not committed too far apart?  I also take into account the fact that these two charges could have been dealt with earlier if they had been detected earlier and dealt with at the same time as the other 10 burglary charges of DC 1101 of 2016. 

11.  I will reiterate that I find in these two cases there are aggravating factors I find serious.  The first is in Charge 1, that aggravating factor is the fact the domestic helper was asleep in the house when the defendant broke in, meaning there was a risk of confrontation.  The aggravating factor I find obvious in Charge 2 is that the value of the items stolen was high, over $300,000.

12.  My order is as follows.  For Charge 1, the defendant is sentenced to 28 months’ imprisonment.  For Charge 2, the defendant is sentenced to 28 months’ imprisonment.  I order that 4 months of Charge 2 will run consecutively to Charge 1.  Therefore, in this case, the defendant is sentenced to 32 months’ imprisonment. 

13.  I order that 8 months of this sentence to run consecutively to the sentence of DC 1101 of 2016 and the balance run concurrently.  Do you understand?

DEFENDANT: I don’t understand.

14.  Well, this means that for this case, you are sentenced to 32 months but I am not adding 32 months to what you are serving now.  I am effectively adding 8 months.  Basically, you face two charges.  It is 4 months for each charge.  Understand?

DEFENDANT: Understand.