HKSAR v. CHEN ZHENGWU

DCCC1242/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1242 OF 2008

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Reasons for Sentence

1.  The defendant pleaded guilty to six charges of offences.  The offences arose from two incidents.

2.  Charge 1 to Charge 3 relate to the first incident, which took place on 22 May 2008.  Charge 4 to Charge 6 relate to the second incident, which took place on 20 November 2008.  Both incidents are burglary in nature.

3.  The first incident took place in a one-storey workshop in Sheung Shui, which a couple occupied for residential and work purpose.  At about 3 am the couple were woken up by some noise.  They proceeded to the workshop area where the noise came from, armed with a knife and a torch.  The defendant was there, he brandished a knife at them and tried to flee.  The male occupant, aged 60, tried to stop him but was cut in his hand by the defendant with a knife.  There was a struggle between the two of them and the wife joined in, either with a knife or with a torch she hurt the defendant’s back.  At last, the defendant managed to escape.

4.  The man had the following injuries: tenderness in his right face, abrasion on both knees and a cut wound of 1 cm long in his right dorsum.

5.  The couple lost cash in the sum of $4,500 and a watch.

6.  The second incident took place in a low-rise residential estate.  At about 3 am, police officers saw the defendant climbing over the wall and go into this residential estate.  He climbed out about 10 minutes later.

7.  When a police officer tried to stop him, the defendant put up resistance.  Both fell onto the ground.  The defendant was eventually subdued by the joint effort of police officers.  Three police officers suffered minor injuries, such as abrasion and tenderness, as a result of the struggle.

8.  The defendant was arrested.  Under caution, he admitted to be an illegal immigrant, having sneaked into Hong Kong on 15 November.  He came to Hong Kong to look for a job.  He said he climbed into the estate with a view to find water and food.  He did not succeed.  He had not gone into any building inside the estate.

9.  He further admitted to have sneaked into Hong Kong before, in late April 2008.  On that occasion he entered into a premise and stole about $100.  He denied having a knife.  He said he was discovered by the occupants and his back was injured by a chop.  He managed to escape and sneak back to the Mainland afterwards.

10.  In sentencing, I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant, mitigation put forward on his behalf, and have had regard to sentencing precedents.

11.  The defendant is a Mainlander.  He is married and lives with his family.  He has a son, seven years old.  He, himself, received primary education.  He had worked as a construction worker for 10 years and in the past eight years he was a farmer.  He earned about RMB800 per month.  I was told he could hardly make ends meet.

12.  As far as the first incident is concerned, although the couple occupied the premises both for residential and work purpose, since obviously by the description of its appearance, the premises was a workshop, I treat it as non-residential premises for the purpose of sentencing.

13.  What the defendant pleaded guilty to is a charge of aggravated burglary.  When he committed the offence, he had a knife with him.  The offence is a serious one; it carries a maximum sentence of life imprisonment.  It is sheer luck that the couple had not suffered serious injuries.

14.  The defendant is not a first offender.  Records show that he had committed five offences, burglary in nature, before.  On 12 July 2005, he was sentenced to a total of 48 months’ imprisonment for these offences.  He was discharged from prison on 5 January 2008.  Within a few months, he committed this serious burglary offence.  This has to be taken into account.

15.  In all the circumstances I am of the view that the following starting points are appropriate.  For Charge 1, three and a half years; for Charge 2, one year.

16.  As regards the second incident, it took place in residential premises.  This was a second case of burglary committed by the defendant in about six months.  Despite it was an unsuccessful attempt, taking into account his previous record of offence burglary in nature, I am of the view that a starting point of three and a half years is appropriate for Charge 4.

17.  As regards Charge 5, the resisting charge, I adopt a starting point of six months.  The defendant must have put up substantial resistance.  He has similar conviction before in the year 2000.

18.  For these charges, the defendant is entitled to have one-third discount for his guilty plea.  Having regard to mitigation, I am of the view that this is the extent of discount the defendant is entitled to in this case.

19.  The defendant suffered injuries in the first incident.  In my opinion, this was what he brought upon himself.  Having considered the whole circumstances I do not think a further discount is warranted.  In spite of the injury, the defendant chose to come to Hong Kong again and committed further offence.

20.  I was told at the time of the second incident the defendant’s father, who is 85 years of age, is ill.  The defendant was eager to come to Hong Kong as in the first instance to look for employment.  While it deserves some sympathy, it has little mitigation effect.

21.  I therefore sentence the defendant to 28 months’ imprisonment for Charge 1, 8 months’ imprisonment for Charge 2, 28 months’ imprisonment for Charge 4, and 4 months’ imprisonment for Charge 5.

22.  For Charge 3, the unlawful remaining charge, I see no reason to depart from the tariff of imposing a sentence of 15 months’ imprisonment upon a guilty plea.

23.  For Charge 6, the other unlawful remaining charge, bearing in mind his previous conviction and the fact that it was the second commission of the offence of unlawful remaining charge in six months, I adopt a starting point of 27 months and give the defendant a one-third discount for his guilty plea.  I sentence the defendant to 18 months’ imprisonment for Charge 6.

24.  As a matter of principle, the sentence imposed on the unlawful remaining charge should run consecutively to the other charges of the same incident.

25.  There are two separate incidents.  The sentences imposed on the offences of each incident should not be concurrent.

26.  In the first incident, while having a knife is reflected in the charge of aggravated burglary, wounding of the victim is not.  The sentences for Charge 1 and Charge 2 should, therefore, as a matter of principle not be concurrent.

27.  In the second incident, the sentences for the attempted burglary and the resistance charge should also not be concurrent.

28.  That said, I have to consider the appropriate overall sentence having regard to totality.  To achieve such an appropriate overall sentence, I make the following order: the sentences of Charge 1 to Charge 3 to run concurrently; sentences of Charge 4 to Charge 6 to run concurrently but wholly consecutive to the aggregate sentence of Charge 1 to Charge 3.

29.  All in all, the defendant is to serve a total sentence of 56 months’ imprisonment for these charges.