HKSAR v, WANG XIAOFEI AND ANOTHER

DCCC 1274/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1274 OF 2011

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Reasons for Sentence

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Introduction

1.  The defendants pleaded guilty to the joint charge of attempted aggravated burglary, contrary to section 12(1) and (3) of the Theft Ordinance (Cap 210) and section 159G of the Crimes Ordinance (Cap.200).

Facts

2.  The facts admitted by the defendants are as follows:

(i) At about 00:00 hours on 28 September 2011, a security guard (“PW1”) left the guardroom for No.36 Repulse Bay Road (the “House”) and patrolled around the House. Soon afterwards, PW1 saw the defendants climb down from the iron fence of the House and enter the garden. PW1 then confronted the defendants in the garden;

(ii) During the confrontation, D1 approached PW1 from behind and grabbed PW1’s neck while D2 pointed a 19 cm long folding knife (the “Knife”) at PW1 and told PW1 to keep quiet. D2 further used a white strap to tie up PW1’s hands. The defendants pushed PW1 onto the ground and asked PW1 if he had the key to the House. PW1 answered in the negative;

(iii) The defendants then took PW1 to the door of the House where one Mr LAW and his family lived. The defendants attempted to open the door with bare hands but failed. The defendants then took PW1 to another door to the House and tried to gain entry by opening that door with bare hands. Again, they failed;

(iv) The defendants then took PW1 to the guardroom where D2 cut off the white strap that was used to tie up PW1’s hands. D1 then took two straps in green colour from his shoulder bag and used them to tie up PW1’s hands and feet. D1 further took a piece of cloth to gag PW1. D2 used PW1’s shoelace to fix that piece of cloth in PW1’s mouth. The defendants also terminated the power supply of the CCTV recording system installed in the guardroom and damaged the CCTV hard disk;

(v) The defendants then took three screwdrivers from the guardroom. D1 tried to prize open the door to the garage of the House with a screwdriver but failed. D2 then used another screwdriver to prize open the window of the main door to the House and succeeded. (Minor scratches were caused to the window hinges.) D2 opened that window and found that there was a second door inside so that they had to prize open that second door before they could enter the core area of the House. The defendants gave up their attempts to enter the House.

(vi) Meanwhile, PW1 managed to untie himself and inform the security guard of the house next door of the incident. A report was made to the police;

(vii) The police organized a sweeping operation in the vicinity of the House in order to locate the defendants. At about 2:50 am on 28 September 2011, the defendants were found hiding themselves at a slope near the House. They were arrested by the police. One shoulder bag, five pieces of plastic straps and one hand glove were found from D1. The Knife, a 14 cm long screwdriver and one face mask were found from D2;

(viii) Under caution, D1 admitted inter alia that he came to know D2 through internet a few months ago in the Mainland, that they agreed to come to Hong Kong to make some money, that D1 came to Hong Kong on 26 September 2011 on the strength of a two-way permit, and that he brought with him equipment fit for restraining others and stealing when he entered the House;

(ix) Under caution, D2 admitted inter alia that he came to know D1 through internet a month ago in the Mainland, that they agreed to come to Hong Kong to commit robbery, that he came to Hong Kong on 24 September 2011 on the strength of a two-way permit, that he was carrying the Knife when he entered the House; and

(x) The costs for repairing the damaged CCTV hard disk and removing the scratch marks on the window hinges were HK$20,528 and HK$1,000 respectively. Except for the aforesaid, no property was stolen from PW1, Mr LAW or his family.

Previous criminal conviction record

3.  The defendants do not have any previous criminal conviction records.

Mitigation

4.  It was submitted on behalf of D1 that:

(i) D1 is 24 years old and single;

(ii) D1’s hometown is in Sichuan;

(iii) D1 has received education up to junior secondary level;

(iv) D1 has a father aged 64 and a younger sister aged 22. D1’s mother passed away in 2004; and

(v) D1 used to work as a freelance decoration worker earning about RMB2,000 per month.

5.  It was submitted on behalf of D2 that:

(i) D2 is 25 years old and single;

(ii) D2’s hometown is in Nanjing;

(iii) D2 has received education up to university level by self-learning;

(iv) D2 has a 58-year-old mother who is fully dependent on D2; and

(v) D2 used to be a driver earning RMB6,000 per month.

6.  Mr. Chan for D1 and D2 also submitted that both the defendants had clear records, that no property was stolen and no one sustained any injury, that they did not put up any resistance upon arrest and that they surrendered themselves to the police when the police were searching the vicinity of the House. (On the other hand, the defendants admitted in the Summary of Facts that they were found hiding at a slope near the House when the police were conducted a sweeping operation. I therefore do not consider the “surrender” under such circumstances a mitigating factor.)  

7.  Mr. Chan also submitted HKSAR v Chen Zhengwu (DCCC1242/2008) and HKSAR v Yang Ming (CACC384/2004) to this Court. Mr. Chui then submitted HKSAR v Li Siu Yeung (CACC232/2004) to this Court.

Sentence

8.  The usual starting point for simple domestic premises burglary in the absence of aggravating or mitigating factors is 3 years’ imprisonment.

9.  This is a case of attempted aggravated burglary on domestic premises. The maximum sentence for attempted aggravated burglary is life imprisonment.

10.  In the present case, a 19 cm long folding knife was pointed at PW1 to keep him quiet. PW1’s hands and feet were tied up. PW1 was gagged. Two burglars were involved and the offence was committed at night. These are aggravating factors I am taking into account.

11.  The respective aggravated burglary charges in HKSAR v Chen Zhengwu and HKSAR v Li Siu Yeung took place in non-domestic premises and there was only one burglar in each case. In the present case, the House was domestic premises and two burglars were involved. The facts of Chen Zhengwu and Li Siu Yeung are different from the facts in this case.

12.  On the other hand, the facts in Yang Ming are more serious than those in the present case: in Yang Ming, the applicant attacked the victim with a knife with 6-inch long blade. The victim was cut and injured on his head and face.

13.  In light of the aggravating factors I pointed out and having considered the sentencing authorities in HKSAR v CHAN Chi Ping (CACC184/1997), HKSAR v WONG Kwok Man王國文(CACC19/2003) and HKSAR v WONG Li Kwong王利光(HCCC261/2009), I will adopt a starting point of 4½ years’ imprisonment for each of the defendants. In this connection, I bear in mind that no property was stolen and no one was injured as a result of this offence. 

14.  In light of the defendants’ guilty pleas, I give each of them one-third discount. There are not any other mitigating factors justifying further reduction in sentence. As such, I impose a sentence of 3 years’ imprisonment to each of the defendants.