HKSAR v. HUANG QI FENG AND ANOTHER

DCCC 912/2017

[2018] HKDC 486

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 912 OF 2017

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REASONS FOR SENTENCE

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Background

1.  Both D1 and D2 pleaded guilty to a single charge of burglary.

Material admitted facts

2.  At all material times, PW1 (50 year old lady) who is a sex worker was the sole tenant of the domestic premises as stated in the charge sheet.  PW1 placed a spare key which can be used to open the metal grille gate on the top of the metal grille gate in case she forgets to bring her house key.  At about 11:09 pm on 23 July 2017, PW1 received a telephone call (caller display 56431029) from a male stranger asking her to go to Room 1403 of City Garden Hotel to provide sexual services.  Prior to leaving, PW1 locked the metal grille gate.  PW1 could not find any client at the City Garden Hotel and returned to her premises at around 11:40 pm.  She then discovered the IPad, the tablet (worth a total of HK$8,000) and cash 500 were missing.  She then reported the case to the police.  Police reviewed the CCTV footages and identified D1 took the house key from the metal grille of the premises at 1:10 pm and returned at around 2:09 pm.  CCTV footage also captured D1 entered the premises at 11:14 pm and left at 11:16 pm on 23 July 2017.  CCTV footages captured D1 was accompanied by a male person at the ground floor of PW1’s building at about 11:07 pm and D2 was also with D1 in the Metropole Building where D1 resided at around 11:20 pm.  The mobile phone with the number of 56431029 was found in D2’s person subsequently.  At the time of arrest, a house key with access to the premises, the stolen IPad and the tablet were found inside D1’s bag.  Under caution, D1 admitted to have burgled the premises.  He also admitted having duplicated the key to the premises in order to steal.  D2 admitted to have called PW1 and asked her to go to City Garden Hotel at the material time.

The defendant’s criminal records and mitigation

3.  D1 has 3 previous convictions.  None is similar to burglary but he has one dishonest related conviction in 2014 where he was fined.  It also appears from the criminal record that he is in breach of a suspended sentence to which D1 denied.  Having retrieved the relevant papers of the case of suspended sentence, the details of that case were not related to D1.  I am satisfied that there is no other basis to suggest D1 is in breach of a suspended sentence. 

4.  D2 has nine previous convictions.  None is similar to burglary but he has 3 dishonest related convictions in 1991 including robbery and blackmail.  

5.  In mitigation, I was told that D1 was a decoration worker earning about HK$10,000 monthly.  He is aged 42, a divorcee with 2 children whose custody is with his ex-wife.  There was no confrontation nor violence was used.  Letters of mitigation were submitted.  The IPad and the tablet were also recovered.

6.  In mitigation, D2 is aged 49, married and a father of a 6 year-old son. He suffered from serious injury from a traffic accident about 3 years ago.  The family was on social security ie CSSA.  Mr Chau stressed that 1/3 full discount should be given.  There was no damage to property, no violence was involved. IPad and the tablet were recovered.  D2 is willing to compensate PW1 the loss of $500 cash.  Mr Chan fairly accepted that the present case involved premeditated plan and joint enterprise.  

Sentencing consideration and discussion

7.  The conventional starting point for burglary of domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 3 years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

8.  The aggravating factors in this case involve premeditated plan and joint enterprise.  However, the plan seemed to avoid confrontation.  I accept such mitigating factors as early guilty plea. The IPad and the tablet were recovered.  The fact that no violence or no confrontation simply did not make the case more serious.  D2 offered to compensate PW1 the loss of $500 cash. The weight on mitigation is insignificant, unlike those cases with substantial amount involved full restitution.  But such offer reflects remorse and such factor is merged with his early guilty plea where he is entitled to 1/3 discount.  In short, PW1 did not ask for compensation and I decided not to make such order.  All in all, I decide to adhere to the usual starting point of 3 years.  Both D1 and D2 were sentenced to 2 years’ imprisonment.