HKSAR v. DAI ZONGFU

DCCC 216/2020

[2020] HKDC 1225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 216 OF 2020

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REASONS FOR SENTENCE

1.  The defendant, a visitor from China, pleads guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance (charges 2-4)[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant today. In summary in the early hours of 26 November last year the defendant burgled three domestic premises on the third floor, the fourth floor and the twelfth floor of Lei Wong House, Lei Yue Mun Estate in Yau Tong.  Access to the flats was by climbing the drainpipes on the outer wall of Lei Wong House and entering through unlocked windows.

Arrest of the defendant

3.  At 3:08 a.m. on 26 November 2019, Ms Lin who resided in Flat 2210 of Lei Wong House, was asleep when she heard some noise outside her bedroom window.  Ms Lin opened the curtain and saw a man.  The man slowly climbed down to Flat 2110. 

4.  Ms Lin went downstairs to report the case to the building’s security and to call the police.  The police arrived and at 3:47 a.m. saw the defendant hiding on the first floor podium which was closed to the public by a locked gate. 

5.  When the police asked the defendant what he was doing the defendant replied he was looking for a toilet.  Suddenly the defendant jumped down from the podium and ran but was subdued by the police.  The police recovered a broken wrist chain, a bracelet and a watch which had fallen out from the defendant as he jumped down from the podium.

6.  The police found on the defendant four wrist chains, two ATM cards, three watches, a ring and HK$1,261.50.  The police also found three bags, a jacket, three membership cards and various miscellaneous items which had been left on the podium. 

7.  The police conducted investigation in Lei Wong House.  At around 4:30 a.m.Ms Li, who resided in Flat 410, was sleeping when the police went to her flat for investigation. Ms Li discovered some of her property was missing including a handbag containing a watch and a bead wrist chain.  Ms Li identified her handbag, watch and the bead wrist chain from the property recovered by the police together with two bags, a jacket, three cards and some miscellaneous items, valued at about $500 (charge 3). 

8.  Ms Cheung who resided in Flat 308 of Lei Wong House was sleeping when the police went to her flat for investigation at around 5 a.m. Ms Cheung found the living room windows were wide open and her home ransacked.  Ms Cheung discovered an ATM card, $700, three watches, a sapphire ring, four crystal wrist chains and a silver bracelet had been stolen.  Ms Cheung identified from the property recovered by the police all the stolen property including one of the wrist chains which had been broken.  The total value of the stolen property was about $8,600 (charge 4).

9.  Ms Li who resided in Flat 1210 of Lei Wong House left home at around 5 p.m. on 25 November 2019 to stay overnight at her relative’s home.  Ms Li closed all the windows but did not lock them.  At around 9:30 a.m. the next morning Ms Li returned home and discovered the living room window had been opened and her home ransacked.  Nothing was however found missing (charge 2).

10.  The defendant’s fingerprints were found on the window frames of Flat 308 and Flat 410.

11.  The defendant is a two-way permit holder who entered Hong Kong as a visitor at 8:11 p.m. on 24 November 2019. 

Mitigation

12.  In passing sentence, I have carefully considered the oral and written submissions of Mr Leung, including that the defendant, who is 30, single, a farmer in China and lives with his parents and younger brother, committed the offences simply for financial reasons to support his family[2].

13.  I take into account that the defendant has no previous convictions.  This however carries little weight where the offender is a visitor who has been in Hong Kong a very short time before committing serious crime. 

Starting point

14.  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 am satisfied the proper starting point after trial on each charge is 3 years’ imprisonment. 

Aggravating factors

15.  The defendant was a visitor from China travelling on a two-way permit.  Little over 24 hours after he entered Hong Kong he committed the three burglaries.  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 and that where the offender entered Hong Kong to commit crime that was much more serious aggravation[3].

16.  When asked if there was anything he wished to say as to whether the court could draw the inference the defendant entered Hong Kong to commit burglary, Mr Leung after taking instructions replied that the defendant came to Hong Kong for travel for two to three days.

17.  The defendant within 30 hours of arriving in Hong Kong committed three burglaries. The burglaries were not opportunistic in that the defendant walked past open doors and stole food or items of little value.   The defendant climbed the drainpipes on the outer wall of Lei Wong House and entered the flats through unlocked windows.  I am satisfied the only inference to draw is that the defendant came to Hong Kong to commit burglary.  I enhance the starting point of each charge by 6 months to 3 years and 6 months’ imprisonment. 

18.  The burglaries subject of charges 3 and 4 were of occupied premises and took place in the early hours of the morning when occupants were highly likely to be at home[4].  Fortunately, there was no confrontation.  I enhance the starting point on charges 3 and 4 by a further 3 months’ to 3 years and 9 months’ imprisonment. 

19.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 2 to 2 years and 4 months’ imprisonment and on charges 3 and 4 to 2 years and 6 months’ imprisonment.

20.  I take into account that the defendant fractured his ankle when  jumping down from the podium[5]. I note that the defendant is receiving treatment for his injury.  I am satisfied the injury sustained by the defendant while trying to escape from the police is not so serious and does not provide a basis by which to reduce the sentence[6]. 

Totality

21.  Although all three burglaries were committed within a short period of time and in the same building, sentence must reflect that three different premises were entered.  I am satisfied a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7]. 

Sentence

22.  The defendant is convicted and sentenced as follows:

Charge 3 – 2 years and 6 months’ imprisonment;

Charge 4 – 2 years and 6 months’ imprisonment with 3 months consecutive and 27 months concurrent to charge 3;

Charge 2 – 2 years and 4 months’ imprisonment with 3 months consecutive and 25 months concurrent to charges 3 & 4.

The total sentence to be served by the defendant is 3 years’ imprisonment.

[1]  Cap 210.  Charge 1 was left on the court file not to be proceeded with without leave of the court or the Court of Appeal. 

[2]  See §§4, 5, 6, 12 & 13 of the written mitigation.

[3]  CACC 485/2012 at §19.

[4]  See for example HKSAR v Song Jianhua CACC 362/2006. 

[5]  See §§7 & 8 of the written mitigation.

[6]  See for example R v Lau Yun Fu CACC 52/1986. 

[7]  See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.