HKSAR v. WEI YUNJI

DCCC 389/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 389 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Burglary". The burgled premises are 2 independent houses situated at Kadoorie Hill and Happy Valley respectively. The 2 offences took place about a year apart.

Summary of Facts

Charge 1

2. Madam WONG and her family reside at the address pleaded in the Charge, which is a 3-storey independent house ("House 1").  A driver and 2 domestic helpers also reside there.

3. On 8 March 2014, the defendant entered Hong Kong via Lok Ma Chau.  He was allowed to remain in the territory until 15 March 2014.

4. In the afternoon on 15 March 2014, Madam WONG and her family left Hong Kong for vacation.  Between 8:47 pm and 9:02 pm on the same day, the CCTV installed outside House 1 captured the acts of 4 males climbing up a tree (one by one) and then onto the balcony of House 1.  From 10:16 pm onwards, the CCTV captured them climbing down from House 1 onto the sidewalk one after another.  Eventually, they all walked towards Prince Edward Road.

5. About 10:45 pm, Madam WONG's driver received a phone call from a neighbour's domestic helper.  He then phoned Madam WONG's elder sister and the Police.  The Police and the driver discovered the balcony door of House 1 having been pried open; the house having been ransacked; properties in the house missing; and 2 safes in one of the bedrooms having been pried open.

6. Properties stolen from House 1 include 7 pairs of earrings, 8 finger rings, 3 gemstones, 5 watches, 1 diamond, 1 diamond brooch, 1 ornament and some comparatively small amount of cash (in Hong Hong currency, US currency and Renminbi).  The total value of the jewellery stolen was approximately HK$10 million (of which items with supporting documents showing their value account for roughly HK$3 million).

7. Subsequently, the Police found 2 fingerprints on one of the safes; they belong to the defendant's left index finger and left middle finger.

8. Around midnight on 16 March 2014 (i.e. roughly 2 hours after the burglars left House 1), the defendant left Hong Kong via Lok Ma Chau.

Charge 2

9. Madam CHAN and her family reside at the address pleaded in the Charge, which is a 3-storey independent house ("House 2").

10. On 8 February 2015, the defendant entered Hong Kong via Lok Ma Chau.  He was allowed to remain in the territory until 15 February 2015.

11. About 6:00 pm on 13 February 2015, Madam CHAN and her family left House 2.  From 8:05 pm onwards, the CCTV installed outside House 2 captured the acts of 2 males climbing up to the 1^st Floor of House 2 and entering a bedroom through a window.  They later left House 2 via the kitchen door on the Ground Floor.  The footage also captured them moving a black bag.

12. About 9:00 pm, Madam CHAN and her family returned home and discovered the house having been ransacked.  A safe was found missing.  The safe contained 1 ornament, 1 bracelet, 2 gold bullions, 1 necklace with pendant and some travel documents.  The total value of the items contained in the safe was approximately HK$257,000.

13. About 10:20 pm, SGT 33565 and his colleagues were travelling along Wong Nai Chung Gap Road in a police car.  They saw the defendant and another male moving a black bag, which appeared to contain a heavy object.  The officers alighted from the police vehicle to pursue the 2 culprits.  The defendant and the male fled, leaving behind the bag.  The Police found the safe missing from House 2 inside the bag.  There were prying marks on the safe.  All items contained in the safe were recovered.

14. Other police officers attended the crime scene at House 2.  There was a chair next to the window of one of the bedrooms.  A shoe print was found on that chair.

15. Meanwhile, SGT 33565 and his colleagues continued to search for the defendant and the male.  About 7:00 am on 14 February 2015, they saw the defendant standing at a bus stop near the junction of Nam Fung Road and Deep Water Bay Road.  PC 52095 arrested him. Subsequently, it was confirmed that the right shoe worn by the defendant would leave a shoe print identical to the shoe print found in House 2.

16. In his video-recorded interviews, the defendant admitted having burgled House 2 and described in details how he and another male committed the offence.  He also stated that he owes RMB80,000 in gambling debt.  In an interview held on 17 February 2015, the defendant claimed that he was unable to recall where he had been on 15 March 2014.

Mitigation & Sentence

17. The defendant is 33 and has a clear record. Defence counsel Mr. LI informed me that the defendant is married with 2 children (aged 6 and 4).  The defendant comes from Guangxi Province.  He is the sole breadwinner of his family by being a decoration worker earning a monthly income of RMB3,000.

18. In mitigation, Mr. LI submitted that the defendant committed the offences because his house collapsed (due to age).  His family is now practically living in a tent.  He wants to rebuild the house but the expenses are simply beyond his means.

19. Mr. LI also submitted that both burglaries were committed in a primitive manner (by climbing into the premises); and no heavy tools were used.  Finally, Mr. LI invited me to bear in mind that in Charge 1, out of the HK$10 million loss asserted by the prosecution, about HK$3 million worth of stolen items are supported by documentary evidence of their value.

20. I have not a single doubt that the only purpose of the defendant coming to Hong Kong was to burgle. I have little knowledge of the social welfare system in the mainland, but I can imagine that it may be not as comprehensive as in Hong Kong. I am prepared to accept that the defendant and his family may well be living in a tent if their house has in fact collapsed. Be that as it may, it is absolutely not an excuse for him to come to Hong Kong to commit crimes. The logic is absurd.

21. I also note that the defendant has mentioned in his video-recorded interview a RMB80,000 gambling debt. Regardless of his reason (home collapsed or gambling debt), the Hong Kong courtshave, time after time, expressedin very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

22. The normal starting point for domestic burglary is 3 years' imprisonment. In both charges, the defendant was acting in concert with 1 or more persons; and the value of the stolen properties was substantial, especially in Charge 1. In other words, 2 aggravating features[1] exist in this case. Furthermore, the culprits targeted at independent houses located at affluent neighbourhood on both occasions. I do not find it a mere coincidence. Someone must have done some planning in advance.

23. For Charge 1, I adopt a starting point of 4 years' imprisonment[2]. A one-third discount is given for the guilty plea, reducing the sentence to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charge 1 is 32 months' imprisonment.

24. For Charge 2, I note that all stolen items were recovered. Nevertheless, the defendant came to Hong Kong for the 2^nd time to burgle and he did so with a partner. Hence, I adopt a starting point of 3.5 years' imprisonment. With the guilty plea, the sentence is reduced to 28 months.

25. In principle, the sentences for both charges should run consecutively. Bearing in mind the totality principle, I consider a global starting point of 5 years to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 40 months. Hence, I order 8 months in Charge 2 to run consecutive to Charge 1; thereby arriving at a total prison term of 40 months.