HKSAR v. XIONG JIAJIA

DCCC 993/2017

[2018] HKDC 244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 993 OF 2017

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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 a restaurant in Tsim Sha Tsui, contrary to section 11 of the Theft Ordinance[1].

2.  In summary in the early hours of 15 March last year the defendant used a hammer to smash open the glass door of the restaurant.  The defendant then ransacked the restaurant and used a screwdriver and a pair of scissors belonging to the restaurant to prize open the cashier machine from which around $10,000 was later found missing. 

3.  The actions of the defendant were captured on CCTV.

4.  Fingerprints of the defendant were found on a cash box and the glass door.  The defendant was arrested on 21 September last year when he entered Hong Kong.  In a video recorded interview, the defendant admitted burgling the restaurant having arrived in Hong Kong the day before.

Mitigation

5.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Kwan together with the mitigation letter written by the defendant.  I take into account the defendant is the major breadwinner of his family consisting of his parents; his younger sister, his wife and their young daughter, aged 7.  

6.  While the defendant does have a conviction for criminal damage, I take into account the defendant has no previous convictions for burglary.

Starting point

7.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment.

8.  I do not agree with Mr Kwan that this was an opportunistic burglary.  This was not burglary of vacant premises or where the defendant passed by an open door and stole food or items of little value[2]. The defendant used a hammer to smash the door of the restaurant and once inside the restaurant prized open the cashier machine and stole the money. 

Aggravating feature

9.  The defendant arrived in Hong Kong on 14 March last year and in the early hours of the next morning committed the burglary.  Mr Kwan submits that the defendant came to Hong Kong to buy presents for the birthday of his daughter and not to steal.  Out of greed the defendant smashed the door and stole the money. 

10.  Whilst the defendant may only have formed the intention to steal that night the commission of offences by visitors is an aggravating feature of sentence[3].  I increase the starting point by 3 months to 2 years and 9 months’ imprisonment. 

11.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months’ imprisonment.