HKSAR v. LUO GUIYANG AND ANOTHER

DCCC 82/2020

[2021] HKDC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 82 OF 2020

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REASONS FOR SENTENCE

1.  D1 pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1] (charges 1 & 2). D1 also pleads guilty to one joint charge of attempted burglary with D2, contrary to section 11 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 3) and one joint charge of burglary with D2 (charge 4). D2 pleads guilty to charges 3 and 4.

2.  D1 and D2 are both visitors from Mainland China, who travelled to Hong Kong on two-way permits. 

3.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendants on 8 February 2021. 

Charges 1 & 2

4.  In the early hours of 12 October 2019 D1 burgled two flats in Wai Ching Mansion, Nos. 56-68 Wai Ching Street in Yau Ma Tei.

Charge 1

5.  At around 4:00 a.m. Mr Wong, who lived in Flat A on the 2/F of Wai Ching Mansion, went to sleep in the living room having first checked that his bags were placed on the sofa in the living room.

6.  At around 5:00 a.m. Mr Wong’s mother found that her son’s bags were left on the balcony. HKD 3,900 and RMB 12,000 were missing.

Charge 2

7.  At around 2:00 a.m. Ms Chiu, who lived in Flat C on the 2/F of Wai Ching Mansion, last checked that her handbag was placed on the sofa in the living room together with some other bags.

8.  At around 9:50 a.m. Ms Chiu found her handbag and the other bags were left on the balcony.  HKD 800 and some foreign currencies equivalent to HKD 600 were missing from her handbag.

Investigation

9.  Screenshots from CCTV footage showed that between 3:43 a.m. and 3:56 a.m. D1 wearing gloves entered the balcony, touched some items in the living room and then left via the balcony.

10.  Movement records show that D1 entered Hong Kong on 10 October 2019 and left on 16 October 2019[3].

Charges 3 & 4

11.  In the early hours of 7 November 2019 D1 and D2 attempted to burgle a flat in Quarry Bay and burgled a flat in North Point. 

Charge 3

12.  At around 2:00 a.m. Ms Xu, who lived in Flat A, on the 2/F of Siu King Building, Nos. 14-16 Tsat Tsz Mui Road in Quarry Bay, checked all the windows and doors were closed and locked.

13.  At about 8:00 a.m. Ms Xu found pry marks on the balcony door which was still closed. Nothing was found missing.

Charge 4

14.  At around 00:30 a.m. Ms Lo, who lived in Flat C, 3/F of Wah Lai Mansion, Nos. 54-76 Marble Road in North Point, closed all the windows except the kitchen window, which was left open for ventilation. 

15.  At around 2:45 a.m. Mr Lam, who lived in Flat B on the 2/F of Wah Lai Mansion, heard some noise from his balcony.  Mr Lam went to the balcony and saw D1 walking on the podium.  Mr Lam immediately shouted at D1 who fled.  About five minutes later Mr Lam saw D2 climbing down the pipe from near Flat C on the 3/F to near Flat B on the 2/F.

16.  At about 7:00 a.m. Ms Lo found that the kitchen window was open much wider than before and that her handbag which had been placed in the living room was on the kitchen floor.  Ms Lo’s wallet had been taken out of her handbag and left on the kitchen floor next to the handbag.  HKD 1000 was missing from her handbag. A Casio watch which had also been in the living room was also missing.

Arrest

17.  D1 and D2 were arrested at around noon on 7 November 2019 when leaving their room in the South China Hotel.  Four pairs of gloves, a screwdriver, a torch, a gold coin, a gold ring, a mobile phone, HKD 9,839.50, RMB 15.5 and IDR 100,000 were found on D1.  A hotel receipt, a mobile phone, HKD 4,300 and RMB 971.1 were found on D2.     

Investigation

18.  Forensic examination shows that a paint sample recovered from the screwdriver found on D1 was the same colour and composition as a paint sample collected from the balcony door of Ms Xu’s flat and that the pry marks were made by the screwdriver (charge 3).

19.  Movement records show that D1 and D2 entered Hong Kong together on 5 November 2019 via Lo Wu Control Point[4].

20.  Photographs of the four flats and the screenshots have been submitted to court.

Mitigation

D1

21.  I have carefully considered the oral and written submissions of Ms Cheng on behalf of D1, including that D1, who is 37 and the breadwinner of the family, has a son aged 6 and a daughter aged 8 to look after his wife having left the family two years ago.  D1 lives with his children and his mother who is disabled after falling in November last year[5].

22.  I have read D1’s mitigation letter in which he asks the court to consider his family situation and impose a lenient sentence.

23.  Ms Cheng explains that D1 committed the first two burglaries out of greed under the bad influence of a friend in Hong Kong who he came to visit and the last two burglaries because he was in need of money to support his children’s education[6].

D2

24.  I have carefully considered the oral and written submissions of Miss Wu on behalf of D2, including that D2, who is 39, is the sole breadwinner of the family comprising of his parents, his wife, two daughters aged 13 and 14 and a son aged 8[7].

25.  I have read D2’s mitigation letter in which he details that during his time in custody the family home was severely damaged by heavy rain and that he feels worried for the safety of his family[8]. I have also read the letters written by D2’s wife, his parents and his eldest daughter, all asking for a lenient sentence. 

26.  Miss Wu explains that D2 committed the burglaries because he had no work to do and no income when D1 invited him to go to Hong Kong to try find work.  Unable to find work in Hong Kong D1 suggested climbing up the drainpipe of a building to commit burglary (charge 4).  In a moment of weakness D2 together with D1 committed two burglaries (charges 3 & 4) [9].

27.  I take into account the defendants have no previous convictions.  This however carries little weight where the offenders are visitors who have been in Hong Kong a very short time before committing serious crime. 

28.  I have also read the two letters from the Xingyuan Village Committee asking for a lenient sentence on behalf of D2 who they confirm is an upright person and has not done any wrong doing in the society.

Starting point

29.  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.   

30.  I do not agree with Ms Cheng that the first two burglaries were committed by sneaking in the premises[10].  Although not stated in the summary of facts, common sense tells you that the only way to access the balconies was by climbing up the drainpipes on the outside of the building. 

31.  Ms Cheng in oral submission accepts the defendant did climb up the drainpipes[11].  The burglaries were not opportunistic in that D1 walked past open doors and stole food or items of little value.  A degree of skill was required to climb up the drainpipes. 

32.  Miss Wu submits a lower starting point should be adopted for charges 3 & 4 because there was no confrontation[12]. In support Miss Wu refers to HKSAR v Lee Wai Shing[13].  Ms Cheng submits a lower starting point should also be adopted for charge 3 and refers the court to HKSAR v Ngai Yiu Choi in which HKSAR v Lee Wai Shing is cited[14].

33.  The facts of Lee Wai Shing are in my view very different, in particular the burglary was committed at 6:35 p.m. and not in the early hours of the morning and did not involve climbing up drainpipes. 

34.  The fact that D1 and D2 did not successfully enter the flat subject of charge 3 is not in my view a mitigating factor[15].  The burglary was also not opportunistic.  Access to the flat was also by climbing up the drainpipe on the outside of the building[16].

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

Aggravating factors

36.  The defendants committed the offences shortly after arriving in Hong Kong.  D1 committed the first two burglaries around 38 hours after he had arrived in Hong Kong.  D1 says he came to Hong Kong to visit a friend[17].  Similarly, the last two burglaries were committed around 36 hours after D1 and D2 had arrived in Hong Kong.  Ms Cheng accepts that D1 came to Hong Kong to commit the last two burglaries[18].  D2 says he came to Hong Kong to look for work[19].  

37.  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[20].

38.  As indicated in court I do not accept the assertion by D1 that he came to Hong Kong to visit a friend under whose bad influence he committed the first two burglaries.  Having taken instructions Ms Cheng informs the court that D1 does not wish to testify about the reason why he came to Hong Kong.

39.  The first two burglaries were committed within two days of D1’s arrival in Hong Kong, in the early hours of the morning by climbing up drainpipes.  I am satisfied the only inference to draw is that D1 came to Hong Kong to commit burglary.

40.  As indicated in court I do not accept the assertion by D2 that he came to Hong Kong to look for work.  Having taken instructions Miss Wu informs the court that D2 does not wish to testify about the reason why he came to Hong Kong.

41.  The burglaries were committed within two days of D2’s arrival in Hong Kong, in the early hours of the morning by climbing up drainpipes.  I am satisfied the only inference to draw is that D2 came to Hong Kong together with D1 to commit burglary.

42.  The burglaries were of occupied premises and took place in the early hours of the morning when occupants were highly likely to be at home[21].  Fortunately, there was no confrontation.  I am satisfied all the burglaries taking place in the early hours of the morning when the occupants were asleep is an aggravating factor. 

43.  The commission of burglary by two or more persons is also an aggravating factor[22]. 

44.  I am satisfied a total enhancement of 9 months’ imprisonment to 3 years and 9 months’ imprisonment is appropriate for the aggravating factors and is not disproportionate to the culpability of D1 and D2[23].

Timely plea

45.  D2 initially pleaded not guilty to charge 3 and guilty to charge 4.  A trial date was therefore fixed for the trial of charge 3.  Two days later D2 wrote to the court saying he would plead guilty.  In the circumstances I will give D2 the full one-third discount for pleading guilty[24].

46.  Giving the defendants full credit for their pleas of guilty reduces the sentence on each charge to 2 years and 6 months’ imprisonment.

Strength of the prosecution case

47.  Ms Cheng submits there should be a reduction in sentence because the evidence against D1 was weak[25].  In support Ms Cheng refers the court to HKSAR v Tsang Kai On[26]. 

48.  The Court of Appeal in HKSAR v Ngo Van Nam affirmed the practice of not having regard to the strength of the prosecution case in determining the discount to be afforded to a defendant for his plea of guilty, which practice was well established and of long-standing in Hong Kong[27].

49.  In HKSAR v Ma Ming, the Court of Appeal disapproved of the suggestion that a defendant who voluntarily confessed and pleaded guilty was entitled to a greater discount of more than one third.   The court held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount[28].

50.  The Court of Appeal in HKSAR v Ngo Van Nam remained ofthe same view the judge was not obliged to give a discount over and above the one-third discount upon pleading guilty and that such a mitigating factor was subsumed within the one-third discount[29].

51.  I would also add that whilst the prosecution case may not have been the strongest case, I do not agree the prosecution evidence is weak. 

Compensation/restitution

52.  D1 offers to pay compensation pro rata in respect of charges 1, 2 & 4[30].  The court having pointed out the powers contained in section 73 of the Criminal Procedure Ordinance and section 30 of the theft Ordinance to order compensation/restitution from monies found on the defendant on arrest, which orders do not require the consent of the defendant, Ms Cheng withdrew this submission.   

53.  D2 offers to pay full compensation[31]. Mr Ma confirms that the owner of the flat subject of charge 4 having claimed insurance no application is made for restitution.  The monies found on D2 will therefore be returned to him. 

Family circumstances

54.  I have read the letter from The Hong Kong Christian Kun Sun Association which particularises the extreme poverty of D2’s family and that there is no one to look after the children because the father is over 70, the mother has poor eyesight and the wife is deaf.  Whilst I am sympathetic to the need of D2’s family, the unfortunate position D2 now finds himself in has been brought about by D2 leaving his family behind and coming to Hong Kong to commit serious offences.

55.  Similarly, whilst I am sympathetic to the need of D1’s family, the unfortunate position D1 now finds himself in has also been brought about by D1 leaving his family behind and coming to Hong Kong again to commit serious offences.

56.  I find no grounds to reduce the sentence of either D1 or D2.  The defendants are convicted and sentenced on each charge to 2 years and 6 months’ imprisonment.

Totality

57.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge and make minor adjustments to the total sentence[32].

58.  Total sentence mustreflect that D1 committed four burglaries and D2 committed two burglaries against different victims in different premises; that there was no confrontation; in respect of charge 3 there was no entry into the flat and the money found on D1 on arrest will be ordered to be paid to the victims of charges 1 & 2 resulting in partial restitution.

59.  Taking into account all the circumstances of the four burglaries, I am satisfied a total sentence of 3 years and 5 months’ imprisonment properly reflects D1’s criminality on the four charges and a total sentence of 2 years and 10 months’ imprisonment properly reflects D2’s criminality on the two charges and takes into account D1 and D2’s personal circumstances and the seriousness of the offences[33]. 

Sentence

60.  The defendants are sentenced as follows:

D1

CHARGE 1 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT;

CHARGE 2 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT WITH 3 MONTHS CONSECUTIVE AND 27 MONTHS CONCURRENT TO CHARGE 1;

CHARGE 3 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT WITH 4 MONTHS CONSECUTIVE AND 26 MONTHS CONCURRENT TO CHARGES 1 & 2; AND

CHARGE 4 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT WITH 4 MONTHS CONSECUTIVE AND 26 MONTHS CONCURRENT TO CHARGES 1, 2 & 3.

THE TOTAL SENTENCE TO BE SERVED BY D1 IS 3 YEARS AND 5 MONTHS’ IMPRISONMENT.

D2

CHARGE 3 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT; AND

CHARGE 4 – 2 YEARS AND 6 MONTHS’ IMPRISONMENT WITH 4 MONTHS CONSECUTIVE AND 26 MONTHS CONCURRENT TO CHARGE 3.

THE TOTAL SENTENCE TO BE SERVED BY D2 IS 2 YEARS AND 10 MONTHS’ IMPRISONMENT.

[1]  Cap 210.

[2]  Cap 200.

[3]  The amended summary of facts shows no direct evidence D1 committed charge 1.  Mr Ma explained the basis of the prosecution case was the proximity in time and place between the two burglaries. 

[4]  The amended summary of facts shows no direct evidence D2 jointly committed the burglary with D1.  Mr Ma explained the basis of the prosecution case was that D1 and D2 entered Hong Kong together, stayed together in the same hotel room; and the proximity in time and place between the two burglaries. 

[5]  See §§13-17 of D1’s mitigation submissions.

[6]  See §§21-23 of D1’s mitigation submissions.

[7]  See §§1 & 2 of D2’s written mitigation.

[8]  Also see §8 of D2’s written mitigation.

[9]  See §§3-5 of D2’s written mitigation.

[10]  See §§25 & 28e of D1’s mitigation submissions.

[11]  The issue of access to the flats subject of charges 1, 2 & 3 was raised by the court prior to plea being taken.  Both Ms Cheng and Miss Wu asked for time to take instructions that access was by way of climbing up the drainpipes.

[12]   See §§25c, 26b, 27 and 30g of D1’s mitigation submissions and §11 of D2’s written mitigation.

[13]  CACC 177/2006.  An agreed translation was submitted to court.

[14]  CACC 370/2010. See §§26-28 of D1’s mitigation submissions

[15]  See §26 of D1’s mitigation submissions and §10 of D2’s written mitigation.

[16]  In oral submission Miss Wu stated that for charge 3 D2 acted as a lookout and did not climb the drainpipe. 

[17]  See §22 of D1’s mitigation submissions.

[18]  See §31a of D1’s mitigation submissions.

[19]  See §§3-5 of D2’s written mitigation.

[20]  CACC 485/2012 at §19.  Also see HKSAR v Sandagdorj Altankhuyag & another [2014] 1 HKC 206 referred to the court by Mr Ma.

[21]  See for example HKSAR v Song Jianhua CACC 362/2006 and HKSAR v Zeng Qing CACC 67/2020.  Also see HKSAR v Tong Fuk Sing [1999] 3 HKC 332 referred to the court by Mr Ma.   

[22]  See HKSAR v Cheng Wai Kai CACC 338/2007 at §15.  Also cited by Ms Cheng.

[23]  See for example HKSAR v Islam Shafiqul [2020] 5 HKLRD 471 and HKSAR v Herry Jane Yusuph CACC 93/2019.

[24]  Also see §8 of D2’s written mitigation.

[25]  See §34 of D1’s mitigation submissions.

[26]  [2011] 2 HKLRD 340.

[27]  [2016] 5 HKLRD 1 at §§59, 162-163 & 193-197.

[28]  [2013] 1 HKLRD 813.

[29]  See HKSAR v Ngo Van Nam at §§38-41. 

[30]  See §35 of D1’s mitigation submissions.

[31]  See §10 of D2’s written mitigation.

[32]  [2013] 1 HKLRD 813 at §32.

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