HKSAR v. ZHU QIBIAO

DCCC 5/2018

[2018] HKDC 529

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 5 OF 2018

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REASONS FOR SENTENCE

1.  The defendant, a visitor from China travelling on a two-way permit, pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1] (charge 1); one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 2) and one charge of theft, contrary to section 9 of the Theft Ordinance (charge 3).

2.  In summary on 11 October 2017 the defendant went to the construction site at Lohas Park in Tseung Kwan O. Lohas Park is a residential development.  Phases 4, 6 & 7 at the time were under construction.   Photographs have been submitted showing the construction. 

3.  At around 1435 hours Mr Chan Wing Kau,who was working in Phase 6, hung his waist bag containing inter alia, cash, mobile phone; identity documents and ATM cards, on a rack in the outdoor area of the ground floor of Tower 2, Phase 6. 

4.  While working close by Mr Chan saw the defendant trying to steal his waist bag.  When Mr Chan shouted to the defendant to stop the defendant immediately dropped the bag and fled.  Mr Chan picked up his bag and chased after the defendant (charge 2). 

5.  Mr Chan and other construction workers eventually caught the defendant and called the police.  PC 24449 arrested the defendant who was wearing a “China State Construction” yellow polo shirt.  Under caution the defendant admitted that he stole the polo shirt from the storage area outside Phase 7 (charge 3) and entered the construction site where he was arrested when trying to steal Mr Chan’s bag.    

6.  Upon search PC 24449 found an Octopus card and two XiaoMi smartphones belonging to Mr Law Chi Chung who was working in Phase 4.  In the morning Mr Law had hung his waist bag containing the Octopus card and the two XiaoMi smartphones together with $100 cash on the scaffolding at the 5th Floor of Tower 5, Phase 4.  The bag was later found on the 5th floor with the contents missing.  Under caution the defendant admitted that he stole the waist bag which he threw away after taking out the contents(charge 1).  

Mitigation

7.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Ching together with the letter of mitigation written by the defendant.  I take into account the defendant has a young daughter to look after in China and that he committed the offences to pay for the medical expenses of his wife who has cancer. 

8.  While the defendant has previous convictions over twenty years ago, I take into account the defendant has no previous convictions for burglary or theft.

Starting point

9.  The correct 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.  I agree with Mr Ching that the building being under construction a lower starting point is appropriate.    

10.  I do not however agree with Mr Ching that the offences can be described as opportunistic. The burglary charge required the defendant to go to the 5th floor.  The theft charges first involved the defendant stealing a workmen’s polo shirt, no doubt in the hope he would not be stopped while he went round the various phases looking for items to steal.    

11.  I take into account all the stolen property has been recovered. 

12.  The building being under construction I am satisfied that a starting point of 2 years and 6 months’ imprisonment is appropriate for the burglary charge. 

Aggravating feature

13.  In HKSAR v Aguilar Garcia Milner Javier the Court of Appeal said that the fact that the applicant was a visitor to Hong Kong was a factor to which the judge was entitled to have regard, as being in aggravation of the commission of the offence[3].  

14.  The defendant entered Hong Kong on 8 October and three days later committed these offences.  In the circumstances I increase the starting point on the burglary charge by 3 months to 2 years and 9 months’ imprisonment.

15.  I am satisfied the proper starting point after trial for attempted theft of Mr Chan’s bag is 1 year and 6 months’ imprisonment and for theft of the polo shirt is 6 months’ imprisonment.

16.  Giving the defendant full credit for his pleas of guilty reduces the sentences to 1 year and 10 months’ imprisonment on charge 1; 12 months’ imprisonment on charge 2 and 4 months’ imprisonment on charge 3. 

Totality

17.  Albeit all the offences were committed on the same day the stealing took part in three different Phases of Lohas Park, Phases 4, 6 & 7.  I am satisfied consecutive sentences are appropriate subject to totality of sentence to be served.  I am satisfied a total sentence of 2 years’ imprisonment is appropriate. 

Sentence

18.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment;

Charge 2 – 12 months’ imprisonment;

Charge 3 – 4 months’ imprisonment.

19.  I order the sentences on charges 2 & 3 to be served concurrently with 2 months consecutive and 10 months concurrent to charge 1. The total sentence to be served by the defendant is 2 years’ imprisonment which I am satisfied properly reflects the defendant’s criminality on the three charges.