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DCCC 330/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 330 OF 2015
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| Before: |
HH Judge Casewell |
| Date: |
17 July 2015 at 11.31 am |
| Present: |
Ms Lisa Go, PP of the Department of Justice, for HKSAR |
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Mr Kong Kok-lung, instructed by C T Chan & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
(1) Burglary (入屋犯法罪) |
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(2) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港) |
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Reasons for Sentence
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1. The defendant has pleaded guilty to one charge of burglary and one charge of remaining in Hong Kong.
2. He has agreed the facts submitted by the prosecution. I convicted him.
3. The facts show the burglary occurred at a three-storey village house in Pat Heung in the New Territories. It occurred on 9 February 2015.
4. The domestic helper who lived in the house left the house with the windows and doors secured at about 9 o’clock in the morning. When she returned at about 11 o’clock in the morning, she went to the third floor, where the defendant was present. He was wearing a mask and a cap and jacket, and had screwdrivers in his pocket of his jeans. He asked the helper why there was no money inside the house. Eventually she gave him a total of $400 and asked him to leave and he did so then.
5. It was later found the glass door on the ground floor of the house had been prised open. None of the property in the house had been stolen.
6. The matter was reported to the police. They found the defendant still in the vicinity of the house. He was arrested. The $400 in cash banknotes was found in his jacket, along with a screwdriver and a fruit knife.
7. Defendant was cautioned. He said he used the screwdriver for prising open doors to commit burglary and that he would use the fruit knife for self-defence. He admitted receiving the $400 from the domestic helper. He also told the officer he was an illegal immigrant.
8. The defendant made further admissions under caution later in the same vein as his earlier admissions. He had entered Hong Kong by hiding under a vehicle and that had been on 20 January 2015.
9. As far as the defendant’s antecedents are concerned, they were admitted. He is aged 41, born in Mainland China, educated to P3 level and has worked as a farmer but was currently unemployed. He is a single man. He is recorded as last being discharged from prison in Hong Kong on 27 December 2014.
10. The defendant admits his previous convictions in Hong Kong. They range from his first conviction in 1994 to his most recent convictions in 2013. The defendant has been convicted of burglary before. There are three separate occasions involving multiple offences. He also has five previous offences of remaining in Hong Kong without authority.
11. As far as the sentences concerning the burglary offences, in 2004 there were sentences of 2 years and 4 months’ imprisonment and 20 months’ imprisonment for remaining. In 2013 there were sentences of 2 years’ imprisonment for burglary on a number of separate offences and a sentence of 18 months for remaining in Hong Kong.
12. As far as mitigation is concerned, the defendant prays in aid his plea of guilty and also refers to the fact that he has suffered from mobility problems as a result of fractures to his limbs.
13. As far as the sentence is concerned, there is a well-settled authority that the starting point for sentence in a domestic premises burglary should be one of 3 years’ imprisonment.
14. Here, the defence is a multiple offender in respect of burglaries, being convicted in 1997, 2004 and 2013; most concerned, of course, is the most recent convictions in 2013, for which the defendant was only released in December of 2014 and then committed these offences in February of 2015.
15. It is clear that previous sentencing has failed to deter the defendant from committing offences such as this and clearly the repetition of offending in burglary is an aggravating factor in sentencing for this offence.
16. The starting point on the first charge should naturally reflect the failure of deterrence in the past.
17. As I have said, the normal starting point for sentence will be 3 years’ imprisonment, which is 36 months.
18. On this occasion I will enhance the starting point by 6 months’ imprisonment to 42 months’ imprisonment to reflect the failure of deterrence in the past.
19. After a one-third deduction for plea of guilty, that will leave a sentence of 28 months’ imprisonment on the first charge.
20. On the second charge, defendant is again a repeat offender in respect of remaining in Hong Kong, and repetition of the offence is also a basis for enhancement of the starting point for sentence, and this has happened in the past for the defendant, when in 2004 the sentence was enhanced to 20 months, which presumably was after plea of guilty.
21. I will impose a sentence of 21 months’ imprisonment on the second charge, which is the sentence after deduction for plea of guilty.
22. So on the first charge, the sentence of 28 months’ imprisonment and on the second charge a sentence of 21 months’ imprisonment.
23. Naturally, these offences can be served consecutively. However, I must take into account what is the right overall totality for the single offence of burglary whilst illegally in Hong Kong.
24. I consider the correct overall totality of sentence in this case is one of 40 months’ imprisonment.
25. To achieve that, I will order that 12 months of the second charge be served consecutively to the first charge, the balance concurrently.
26. That leaves a total of 40 months’ imprisonment for sentence.
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(T Casewell) |
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District Judge |
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