HKSAR v. LUO QINGJIA

DCCC 141/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 141 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of domestic premises burglary.

2.  In summary, on 16 November 2013 at around 7 pm, he burgled two premises in Park Island, a private residential estate in Ma Wan, Tsuen Wan, New Territories.  He was seen moving along the outer wall of Block 9 of the estate.  A report was made to the police. 

3.  At around 7.20 pm when the defendant was leaving an elevator of Block 9, he was intercepted by a security guard.  Police officers later arrived.  They conducted a body search on the defendant.  In the defendant’s left front trousers’ pocket, there were a watch, a pendant, wrist chains, a necklace with pendant and HK$1,200 cash (Exhibits 1 to 6). 

4.  The $1,200 cash (Exhibit 6) was stolen from the premises particularised in Charge 1.  The other exhibits were stolen from the premises particularised in Charge 2.

5.  Under caution, the defendant admitted the offences.  He stated that he had no money and he heard that the people living on Park Island were rich, so he came to Park Island to steal. 

Background and mitigation

6.  The defendant, a 25-year-old resident in the mainland, has a clear record in Hong Kong.  

7.  In mitigation, Miss Hung, the defendant’s solicitor, says the defendant was an electronic factory worker in the mainland.  He was living with his parents before he came to Hong Kong on 15 November 2013 on the strength of a two-way permit.  His parents used to be farmers.  However, they suffered a physical condition such that they are now unable to work in field.  In particular, his father needed to undergo an operation and the family had to borrow about forty to fifty thousand Renminbi.

8.  Since the beginning of last year, the defendant received less income due to decreased work.  He started to come to Hong Kong to buy products for friends and relatives earning a small profit.  That explains why he also had 2,000 Renminbi and HK$6,000 in his possession when he was arrested.

9.  In mitigation, it is suggested on the day of offence, the defendant boarded a taxi and learned from the driver that Park Island is a place where rich people live.  He therefore decided to go for a look. During the visit he decided to steal out of momentarily greed. 

10.  Miss Hung draws my attention to two Court of Appeal cases and one District Court sentencing matter for the usual starting point and principle of totality.  As these cases demonstrate no more than general principle, a discussion of them is unnecessary. 

Sentencing consideration

11.  Burglary is a serious offence.  It is well established that 3 years’ imprisonment is the usual starting point for a single offence of burglary of domestic premises by a first offender of full age.

12.  The two offences took place at about 7 pm when the premises were unoccupied.  The premises were not broken open or damaged. There is no evidence that the defendant carried with him any equipment to commit the offences.  I therefore hold that there were no aggravating circumstances in the case. 

13.  Although the value of the stolen properties in Charge 2 is not insignificant, it is not so much so that the usual starting point should be enhanced.  As the two offences were proximate in time and location, premises 1 being one floor above premises 2, I would regard the two offences as one transaction.  However, as it involves burglary of two premises, I would use 3 years and 3 months as the starting point for both offences and order them to run concurrently.

14.  I have considered whether the starting point should be enhanced as the defendant arrived Hong Kong on 15 November 2013 and the offences were committed the next day.  The suggestion that the crime was committed out of momentary greed is ludicrous.  It is not what the defendant said to the police.  However, on the other hand, it is not disputed that the defendant had previously come to Hong Kong six times in 2013 and he had 2,000 Renminbi and HK$6,000 on his person at the time of arrest.  

15.  Given that the defendant had not committed any previous offences in Hong Kong, I am unable to say that his intention of coming to Hong Kong to commit crime is inescapable for the purpose of enhancing the starting point.  The defendant’s financial and family hardship are not factors that can form the basis of mitigation in this kind of serious offence.  The only mitigating factor is his plea of guilty for which he will get one-third reduction in his sentence.  Defendant is therefore sentenced to 2 years and 2 months’ imprisonment.