HKSAR v. LYU RONGHUA

DCCC 158/2018

[2018] HKDC 740

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 158 OF 2018

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REASONS FOR SENTENCE

1.  The defendant, a mainlander holding a two-way permit to enter Hong Kong, pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance[1].

2.  In summary on 22 December last year Ms Lee resided at Room A on the 17/Floor of Mei Tung Building in Sai Wan Ho.   At the time there was scaffolding outside the kitchen.  Photographs have been submitted to the court showing the scaffolding on the outside of the building.

3.  At around 2300 hours Ms Lee zipped up her rucksack which she placed on a chair next to the dining table.  Ms Lee then went to bed. 

4.  At about 0315 the next morning Ms Lee woke up and placed her mobile phone on the dining table.  At that time the rucksack was still zipped up and placed on the chair.

5.  At around 0515 hours Ms Lee found the kitchen window and window grille open.  The rucksack had been removed from the chair with the contents scattered in the kitchen.  The mobile phone had been removed from the phone case and placed on the window sill of the kitchen.     

6.  Ms Lee found her wallet containing HKD2,160, RMB1,045, a name card and a staff contact list missing. 

7.  Meanwhile at 0500 hours PC 19620 saw the defendant climbing down from the scaffold of Mei Tung Building.  When the defendant reached the rear lane next to Mei Tung Building he was intercepted by PC 19560. When PC 19560 revealed his identity the defendant immediately fled removing his black jacket in the process.  Police officers chased after the defendant.  When the defendant fell over he was subdued by PC 10200.

8.  The defendant was found in possession of Ms Lee’s wallet.  The name card and contact list were still inside the wallet.  Also inside the wallet was HKD540 and RMB1,119.60.  HKD1,510 was also found in the right front pocket of the defendant’s trousers.   

Mitigation

9.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Leung as particularised in his written submission, together with the mitigation letter written by the defendant.  I take into account the defendant is the sole breadwinner of his family consisting of his parents and his two young children aged 11 and 14[2].

10.  I agree with Mr Leung that 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 do not however agree with the submission that there are no aggravating features. 

11.  First, the burglary took place in the early hours of the morning when occupants were highly likely to be at home[3]. Fortunately, there was no confrontation.  Relying on the decision of the Court of Appeal in HKSAR v Ng Wai Hing where there was a confrontation, Mr Leung submits that the starting point should remain at 3 years’ imprisonment[4].  I am satisfied that the starting point is to be enhanced by 3 months to 3 years and 3 months’ imprisonment. 

12.  Second, the defendant arrived in Hong Kong on 18 December last year and in the early hours of 23 December committed the burglary.  The commission of offences by visitors is an aggravating feature of sentence[5]. Mr Leung submits that the court should not put too much weight on this factor.I am satisfied that the starting point should be enhanced by a further 3 months to 3 years and 6 months’ imprisonment. 

13.  I do not however increase the starting point by reason of the defendant’s previous convictions, including one for burglary, the convictions being in 1994 over twenty years ago. 

14.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 4 months’ imprisonment.