HKSAR v. YAN LIANGQUAN

DCCC 631/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 631 OF 2013

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one charge of burglary (Charge 1) and one charge of attempted burglary (Charge 2).

Charge 1

2.   The victimised residential premises were situated at Stanley.  In the early hours of 16 October 2012, female Yu Mo-mei (PW1) and female Sri Astuti (PW2), her domestic helper, were sleeping in their respective bedrooms.  The door of the flat was secured but some windows were unlocked.

3.   At about 2.30 am, PW2 heard some noises in the kitchen.  She did not go to check as she was scared.

4.   At around 6 am, PW1 woke up and found her handbags, which were previously placed in her bedroom, left on the kitchen table. The kitchen window was widely opened.  Cash of HK$2,000 inside her purse and about HK$400 kept in her son’s room were found missing.

5.   The case was reported.  Police officers attended the flat and found fingerprints of the defendant on the kitchen wall.

Charge 2

6.   The second incident took place at a residential estate located at Chung Hom Kok.

7.   There were seven independent houses with a communal swimming pool guarded by barbed wire wall and a metal exit door on the periphery.

8.   At about 2.35 am on 16 October 2012, a security guard working there saw a male standing by the wall near the backyard of House No.13 suspiciously.  He immediately reported the case to the police.

9.   Police arrived at the scene.  Blood spots were found on the ground under the wall near the exit and a blood trail was found leading upwards along a staircase to the backyard of House No.13 with the presence of blood smears on the railing and a parapet.  Three pieces of blood-stained tissue paper were found in a nearby public car park. 

10.   Subsequent DNA analysis showed that all these blood had come from the defendant.

The arrest

11.   The defendant was arrested on 25 April 2013 when he entered Hong Kong via Lo Wu Control Point.

12.   A small torch, a fingernail clipper and RMB857 were found in his possession.

13.   Under caution, he remained silent.

14.   In a subsequent video recorded interview, the defendant denied the offences.

15.   The exit/entry permit for travelling to and from Hong Kong and Macau of the defendant shows that he did enter Hong Kong on the material day.

16.   Traffic index check showed that the defendant arrived Hong Kong from the Mainland at 6.38 am on 15 October 2012 via Lo Wu and departed Hong Kong at 7.32 pm on 16 October 2012.

Background and mitigation

17.   The defendant is a 40-year-old visitor from the Mainland.  His wife and two children are living there.  He has seven previous court appearances in Hong Kong, with six previous convictions for unlawful entry, three for burglaries and one for conspiracy to steal.

18.   In mitigation, Mr Kan, solicitor for the defendant, said the defendant needed money to arrange for household registration of his newborn child, who is the second child of the family. Because of his financial stress and out of greed, he committed the present offences. 

19.   Mr Kan said the offences are opportunistic burglaries.  The defendant just entered to see what can be stolen.  For the offence in Charge 2, he submitted no loss was resulted.  The two offences were not pre-meditated. He asked the court to treat the two offences as a series of offences and pass concurrent sentences. 

20.   He asked the court not to increase the starting point by treating the defendant as a persistent offender, as the first burglary was committed very long ago.

21.   The defendant would also agree to compensate the victim with his money now kept by the police, ie MOP50 and RMB857 (Exhibit 19 and 21 in the exhibit disposal form).

Sentencing consideration

22.   The usual starting point for a single burglary of domestic premises committed by a first offender of full age when there are no mitigating or aggravating features is 3 years’ imprisonment.  See A-G v Lui Kam Chi [1993] 1 HKC 215 and A-G v Lo Ching Fai [1996] 2 HKCLR 20.

23.   I reject the submission that the present offences are opportunistic burglary cases.  The two premises are located at remote and luxurious residential areas.  The premises in Charge 1 is on the second floor of a building.  The defendant needed to climb up the wall to reach the flat. From the photograph produced by the prosecution showing the premises in the second charge, the defendant’s blood trail was found all the way leading to the backyard of a house inside the estate, guarded by barbed wire wall and even on the rock of the creek near the car park.  It shows that the defendant had injured himself while he climbed over the wire wall.  The suggestion that the defendant happened to walk past and sneak in by chance is ludicrous.

24.   Financial difficulties is no excuse or mitigation for committing crimes like the offences in the present case. 

25.   On the other hand, there are, however, aggravating factors in this case that the usual starting point should be increased.

26.   The two offences were committed in the small hours of the morning.  The defendant burgled the home of PW1 and PW2 at a time when they were sleeping inside.  Anyone would clearly have expected that the premises were occupied at the time.  PW2 was actually terrified.  See HKSAR v Tong Fuk Sing [1999] HKLRD 710.

27.   Not only that I reject the suggestion that the defendant was an opportunistic burglar, I find that he is a professional thief and a persistent offender. 

28.   He has an appalling criminal record in Hong Kong.  He repeatedly entered Hong Kong illegally.  It is noted that in the past he has used several different names in Hong Kong.  Having entered into Hong Kong illegally, he committed attempted burglary in 1997.  Since January 1997 he had entered Hong Kong illegally for six times and committed burglary or attempted burglary for three times and one for conspiracy to steal.

29.   Of course, as a general principle, a defendant should not be punished for a previous offence for which he has received his punishment.

30.   However, it is clear that the sentences passed on him in the past obviously could not effectively stop him from committing offences in Hong Kong.  An enhanced sentence should be imposed on him as a persistent offender as a deterrent to protect the public.  See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

31.   The background of the defendant and circumstances of the present case are similar to HKSAR v Song Jianhua, CACC 362/2006, where the Court of Appeal held that a starting point of 4 years’ imprisonment, while on the high side, was not wrong in principle or manifestly excessive.

32.   There is also one additional aggravating factor in this case that must not be ignored.  The defendant arrived in Hong Kong on the morning of 15 October 2012.  He committed the present offences the next early morning.  He then departed Hong Kong in the evening of the next day. When he was arrested, he had a torch and fingernail clipper in his possession.

33.   I find that he came to Hong Kong on 15 October 2012 with the specific intention to commit offences here. 

34.   The starting point should be enhanced further for this international element.  See R v Saldana Alca Jose, CACC 655/1996.

35.   The starting point for Charge 1 for all these aggravating factors should be adjusted to 4 years’ imprisonment.

36.   For the second offence, to reflect the fact that the entry into flats had been prevented at an early stage of the offence and that no occupiers were terrified, I will take 3 years and 9 months as the starting point.

37.   I will not give credit to the offer of the defendant using his prisoner’s property (ie the Renminbi and Macau money equivalent to around a few hundred Hong Kong dollars) to compensate the victim. I do not see any remorse arising from the offer.  In any case, the sum of money proposed by the defendant can count nothing as a mitigating factor.

38.   The only mitigating factor in favour of the defendant is his plea of guilty, for which he will get one-third reduction of his sentences.

39.   The last question is whether the sentences for the two offences would run wholly concurrently.

40.   I do not regard the two offences as one transaction.  The two offences took place in two different places, though committed in near places and near times.

41.   This question might be academic, for, if the two offences are to be treated as multiple offences committed in one series of criminal activity, a higher overall starting point for the two offences is justified. After all, totality must be considered in any case.

The sentence

42.   As a result, the defendant is sentenced as follows:

(1) Charge 1, 32 months’ imprisonment

(2) Charge 2, 30 months’ imprisonment, 3 months to run consecutively to the sentence in Charge 1.

43.   The total term of imprisonment is, therefore, 35 months’ imprisonment, ie 2 years and 11 months.