HKSAR v. WU JIANWEN

HCCC 176/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 176 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendantpleaded guilty before a magistrate of the following charges and was committed to the Court of First Instance for sentence, that is 13 charges of burglary Charge 1 and Charges 3-14, and one charge of possession of arms without a licence, Charge 2.

Today, he pleaded guilty before me again and admitted the Summary of Facts.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant was intercepted at around 3.15 am on 20 July 2013. He was carrying a bulky bag. Inside the bag, amongst other things, a screwdriver was found. A bottle of suspected gas spray was found inside his trouser pocket. The bottle bears clear Chinese words meaning “tear spray”. The defendant said it was for his self defence. The bottle was subsequently examined by a forensic scientist. It was found that a brown liquid could be discharged in the form of a mist from the nozzle when pressed down. The liquid contained a mixture containing 2-chlorobenzalmalononitrile which was a substance often found in personal protection devices. The substance could elicit a burning sensation in a soft mucosal tissue if it was targeted at eyes or face. The forensic scientist opined that it was a noxious chemical. Inside the bag the defendant was carrying were also items which were shortly afterwards confirmed to be items stolen from a nearby domestic premises.

In an interview, the defendant admitted under caution that he had committed the burglary which is the subject matter of Charge 1. In subsequent interviews, the defendant admitted to have committed further burglaries. These were the cases set out in Charges 3 to 14.

Each place being burgled was domestic premises. The properties the defendant stole were as set out in the charges. The total value of the stolen properties in the 13 burglaries is estimated to be around $879,000.

Only a couple of the stolen properties were recovered, apart from those being carried by the defendant. Fingerprint or palm print of the defendant was found in each of the burgled premises.

The defendant is a two-way permit holder. I was told that the defendant is 25 years of age. He was educated up to Junior High School level in the mainland and had worked as a decoration worker. He does not have a criminal conviction record in Hong Kong.

In mitigation, learned counsel for defence Mr Roderick Wu urged the court to take into account that the defendant pleaded guilty at the first available opportunity and he made frank admission in relation to each offence. He also urged the court to take into account the poor background of the defendant.

The defendant was deserted by his parents upon birth. He had to live with four foster parents in turn. The last foster family, in particular the grandparents, treated him well. There are five members in the family. As the defendant was the only son and he was working, he was responsible for most of the household expenses.

The grandmother has been suffering for tuberculosis for years. The grandfather has been suffering from dementia. Both of them were under medical care. Whilst they were retired civil servants, only part of the medical expenses was borne by the government, they still have to pay around 40% themselves.

The family was under great financial pressure. It was under these circumstances that the defendant decided to come to Hong Kong to earn quick money and take care of the medical expenses of the grandparents.

Mr Wu said the defendant is full of remorse, and he submitted a letter written by the defendant himself in which he expressed his remorse.

It was held in AG v Lui Kam Chi [1993] 1 HKC 215 that three years’ imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender in circumstances unattended by particular aggravation or mitigation.

In HKSAR v Cheng Wai Kai CACC 338/2007, the Court of Appeal held that if the offender is a professional burglar and not just an opportunist, it is an aggravating factor. I find the defendant a professional burglar.

The defendant came to Hong Kong this time on 19 July 2013. On the following midnight he committed the offences of Charge 1 and Charge 2. The only inference is that his primary purpose of his coming to Hong Kong was to commit burglary.

He had committed the same offence on previous occasions: twice in August 2012; eight times in June 2013; and twice in July 2013.

The prosecution was unable to confirm on how many different occasions did the defendant enter Hong Kong in the whole period of time. In any case, it is clear to me that the main purpose of the defendant’s previous entrance into Hong Kong was also to commit burglary.

In HKSAR v Gao Chuang-lu CACC 25/2013 Lunn JA (as he then was) held that this was also an aggravating feature.

The offences were committed at domestic premises in different areas including Tseung Kwan O, Aberdeen, Sai Kung, Tsuen Wan, Ma On Shan and Shek O. The offences were committed in the middle of the night where occupiers were reasonably expected to be present. In one case there was a brief encounter between the defendant and the female occupier of the premises, but the defendant fled without doing any real physical harm to her.

In HKSAR v Tong Fuk-sing [1999] 3 HKC 332, Stuart-Moore VP recognised it as an aggravating feature if the burglary was committed in the early hours or the morning at a time when the house was occupied and where anyone would clearly have expected it to be occupied.

Entry was gained usually by opening up windows and doors on most occasions by means of prizing. Value of the stolen properties varies from $2,340 to $558,550. In some cases bankcards were stolen. In some cases identification documents were stolen. Apart from the case in which almost half a million dollars worth of properties were stolen, I do not consider there are factors significant enough to distinguish between the cases to an extent that different starting points should be adopted for a particular charge.

Therefore, apart from Charge 13, I adopt a starting point of 3 years for each of the burglary charges. For Charge 13 having regard to HKSAR v Chow Keung CACC 478/2006, a higher starting point of 3 1/2 years is adopted to reflect the high value of properties which the defendant has stolen.

In the light of the aggravating features I identified earlier, I am of the view that each starting point in relation to the burglary charges should be enhanced by six months.

For these reasons I adopt an ultimate starting point of 4 years for Charge 13 and 3 1/2 years for each of the other burglary charges.

As regards the arms charge, it concerns a weapon capable of discharging noxious liquid. In all the circumstances of the case, the only inference is that the defendant was prepared to use it if he considered it necessary when he was committing the offence or to avoid arrest. At the same time I also note that he did not actually use the liquid in commission of Charge 1 or to avoid arrest when he was intercepted by a police officer.

Both parties indicated that they were not able to submit any sentencing precedent on this nature of arms. I am of the view that a starting point of 24 months is appropriate for this charge bearing in mind the circumstances in which the defendant was in possession of the arms.

The defendant pleaded guilty to each charge. He is entitled to a one-third discount for this reason. I do not consider there is any other factor which justifies any further discount. Despite the able submission of Mr Wu, economic pressure is not recognised as a mitigating factor.

I recognise that the defendant admitted to each of the offences, but he was in possession of the stolen properties of Charge 1 soon after the offence had been committed, and his fingerprint or palm print was found in each of the other cases. It cannot be said that the crime has only come to light as a result of the admission of the defendant.

I therefore impose the following sentences:

For Charge 13, 32 months. For each of the other burglary charges, 28 months for each offence. For the possession of arms charge, 16 months.

Within a year in different durations when the defendant came to Hong Kong he had committed a total of 13 burglaries.

In these circumstances, I consider the appropriate notional overall starting point having regard to cases including the following.

(1) In HKSAR v Xie Guohong CACC 384/2003, the defendant pleaded guilty to four counts of burglary of non‑domestic premises committed over a period of two months. The Court of Appeal held that an overall starting point of 6 years was appropriate.

(2) In HKSAR v Lau Bing CACC 138/2008, the appellant committed five domestic burglaries in four years, stealing properties of large value. He pleaded guilty. The Court of Appeal agreed that the totality of 5 years and 4 months’ imprisonment for these charges was not manifestly excessive.

(3) In HKSAR v Fan Kit Hung CACC 62/2009, the appellant who was regarded as a professional burglar committed 13 cases in four months. The premises he burgled was non‑domestic. The Court of Appeal considered a notional overall starting point of 6 years appropriate.

(4) In HKSAR v Wu Chi Tai CACC 256/2010, the Court of Appeal held that a notional starting point of 6 years was appropriate where the appellant had pleaded guilty to five counts of burglary-related offences, and one count of taking conveyance without authority. The burglary took place in non-domestic premises.

In all these cases the sentences were arrived at on the basis of the usual starting point applicable to a burglary offence.

In the present case, aggravating features are identified. In all the circumstances, as far as the burglary charges are concerned, having regard to totality, I am of the view that only a notional overall starting point of 8 1/2 years is sufficient to reflect the culpability of the appellant.

The ultimate total sentence for the burglary charges, having taken into account the discount for guilty pleas should therefore be 5 years and 8 months’ imprisonment.

When the defendant was arrested he was in possession of an arm. This is in connection only to the last burglary, Charge 1.

Having regard to what Stock VP said in HKSAR v Ngai Yiu Ching CACC 107/2011 about the approach to be adopted in deciding the proper overall sentence where offences of a different nature was involved, and having regard to the fact that I had not taken into account the possession of arms in deciding the sentence for Charge 1, I am of the view that Charge 2 increased the culpability of the appellant and the overall sentence should be enhanced by 7 months to reflect this.

That will bring the overall ultimate sentence to 6 years and 3 months’ imprisonment.

To give effect to the overall ultimate sentence I have just mentioned, I will make the following order: 15 months of Charge 2 to run consecutively to the sentence of Charge 1. And sentences of Charge 3 to Charge 14 to run concurrently with each other, but the aggregate of these sentences to run wholly consecutively to the cumulative sentence of Charge 1 and Charge 2.