HKSAR v. LIU HUAI QILIN

DCCC 51/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 51 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (first charge) and one count of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115 (second charge).

Facts

2.  X resided in a 2-storey apartment located at No 19 Middle Gap Road, Central, Hong Kong (“Apartment”) together with his wife Y, 2 children and 2 domestic helpers.  The Apartment was surrounded by a garden. Security devices including CCTV system and barbed wire fences were installed but there was no CCTV camera inside the Apartment.  Two security guards were employed.

3.  At about 7 pm on 11 October 2015, X left the Apartment with Y for dinner but before leaving, X checked his personal belongings proper and that all windows to his master bedroom were locked.  X’s children, as well as the domestic helpers, remained at home.

4.  At about 9:15 pm on the same day, a security guard of the Apartment was on patrol duty and he noticed a male wearing a hood near the toilet of the garden.  The security guard shouted at the male, who threw a stone at him and fled.  X was informed and returned to the Apartment shortly.

5.  Upon checking, signs of ransacking were observed in the master bedroom and the reading room.  Prize mark was noted on the toilet window frame inside the master bedroom.  Case was then reported.

6.  A total of 12 watches (approximate total value was HK$2,075,000), 5 jade necklaces, 2 gold brooches and some jewelleries (approximate total value was HK$231,000) were found missing from the master bedroom and reading room of the Apartment.  The total approximate value of all stolen items was HK$2,306,000.

7.  One of the missing watches, valued at about HK$400,000, was found and recovered later that night by one of the domestic helpers in the garden of the Apartment.  Other stolen items were not recovered.  Upon searching, police found 3 gloves on the barbed wire and on the ground near the barbed wire.

8.  On the same day when seeking medical treatment, it was revealed that the defendant did not have any Hong Kong identity card.  The defendant was then arrested for the offence of “unlawful remaining”.

9.  Subsequently, the defendant was brought back to the scene and, under caution, he pointed out that the Apartment was the building where he committed burglary with 3 others and he also pointed out the escape route to police officers.

10.  In subsequent video-recorded interviews, the defendant admitted under caution that:

(a) He got to know 3 other males called “XiaoFu”; “Ah Tung” and “XiaoXiong” through online games 2-3 years ago.

(b) They became friends and eventually decided to come to Hong Kong to steal.

(c) They met in Shenzhen on 9 October 2015 and illegally entered Hong Kong by climbing through some metal fences in Sha Tau Kok.

(d) They brought with them 3 rucksacks containing food, 3 torches and 2 screwdrivers.

(e) Eventually they decided to break into the Apartment in the evening on 11 October 2015 to steal.

(f) They first spent some time figuring out the blind spots of the CCTV systems before entering the garden of the Apartment by climbing up trees and stepping over the barbed wire fences.

(g) They were wearing gloves and hoods.

(h) They formed a “ladder” by stepping on other’s shoulders and climbed to the 2^nd Floor of the Apartment, where a window was prized open by XiaoXiong using screwdrivers.

(i) Inside the Apartment, they ransacked the master bedroom and reading room. The defendant stole some jewelleries from the reading room and kept them in a rucksack.

(j) XiaoXiong was responsible for keeping lookout and he soon shouted that they had been discovered.

(k) They then fled through the window of the toilet, climbed over the wall and barbed wire fences.

(l) The defendant was the last one to left but he accidentally injured himself while climbing the barbed wires.

(m) He felt unwell and thus took a taxi to the Shatin Hospital to seek treatment, alleging that he was an illegal immigrant.

(n) He was shown the gloves recovered at scene and he identified them to be those used by them when committing the offence.

11.  CCTV footage between 8:43 pm to 9:19 pm on the date of offence captured 4 hooded burglars climbing in over the wire fences, climbing up the Apartment by stepping on each other’s shoulders and the lookout being discovered by security guard and later escaping with others by climbing over the fences.

12.  Immigration record of the defendant was checked and confirmed that there was no record of the defendant entering into Hong Kong.

Mitigation

13.  The defendant is aged 25, divorced with a 1-year-old son.  He had no criminal record in Hong Kong. Prior to the arrest, he was living with his son and parents in China and worked as a restaurant waiter earning RMB2,000 per month.  He had to support his son but not his parents.  He committed the present offences as he needed to repay a debt of RMB60,000. 

14.  In mitigation, Mr Ng referred to several cases[1] and submitted that the defendant and the other culprits were not professional burglars.  There was no ring leader and no detailed planning or organization.  No heavy tools or equipments were used.  The defendant did not use tools to break into the premises.  He only followed others into the premises after the window of the toilet was prized open.  Further, no occupants of the premises were aware of the burglary and no serious damage was caused to the premises.  The only aggravating factors were that the burglary was committed by 4 persons and the value of the stolen properties was substantial.  It was submitted that the starting point would not be more than 3.5 years’ imprisonment. 

15.  Mr Ng also submitted that given the defendant’s young age, that he has a 1-year-old son who needs his care and support, there was strong humanitarian ground to warrant part of the sentence for the unlawful remaining charge to run concurrently with the sentence for the burglary charge.  Mr Ng further submitted that the total sentence should not be more than 40 months’ imprisonment.

Sentence

16.  There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

17.  The starting point can be adjusted upward if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature; and (6) the offender commits multiple offences (see HKSAR v Cheng Wai Kai, CACC 338-339/2007).

18.  In relation to the offence of remaining in Hong Kong unlawfully, it is well settled that a sentence of 15 months’ imprisonment after a guilty plea is the appropriate sentence.  It is also well settled that the sentence for burglary should run consecutively to the sentence for unlawfully remaining in Hong Kong (see HKSAR v Kei San Man & Another, CACC 246/1999 and HKSAR v Lau Pang, CACC 252/2004).

19.  For the first charge, i.e. the burglary offence, I find that there are aggravating features in the commission of the offence: (1) the offence was committed by a total of 4 persons, (2) properties of substantial value had been stolen and not recovered, (3) the defendant and the other culprits sneaked into Hong Kong for the purpose of committing burglary, and (4) the burglary was planned in that they brought along tools such as screwdrivers and torches, they also spent some time to figure out the blind spots of the CCTV systems before entering the premises, they were wearing gloves and hoods at the time of the commission of the offence to avoid subsequent identification by others and one of them was assigned to act as a lookout.  In the circumstances, I consider the usual starting point of 36 months should be enhanced by 9 months to reflect these aggravating features.  Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence is reduced to 30 months’ imprisonment.  Apart from his guilty plea, I do not find any other mitigating factor justifying a further reduction of sentence. 

20.  For the second charge, it is the defendant’s first conviction.  I am satisfied that the sentence after plea should be 15 months’ imprisonment.

21.  As I mentioned before, it is well settled that the sentences for the first and second charge should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 40 months is sufficient to reflect the criminality of the defendant.  I therefore order that 10 months of the sentence for the second charge should run consecutively to the sentence for the first charge.  I hereby sentence the defendant to a total of 40 months’ imprisonment.