HKSAR v. ZHANG JIANHUI

DCCC 374/2020

[2021] HKDC 277

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 374 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Zhang pleaded guilty before me to one charge of burglary contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence are that Mr Zhang, on 25 December 2019, in Hong Kong, entered as a trespasser a building known as No 71 Shung Ching San Tsuen, Shung Ching Road, Yuen Long, New Territories, with intent to steal therein.

Facts admitted by Mr Zhang

3.  The offence location comprised, inter alia, a single storey house with a backyard.  The entire structure was surrounded by walls on four sides. The entry to the location was through a metal gate secured by a simple lock which could be unlocked easily.

4.  In the early morning of 25 December 2019, PW1 the house owner got up early for going to the airport to pick up someone.  After he got out of the house, he heard some noise and saw Mr Zhang in the backyard wearing a face mask on and a pair of gloves.  PW1 confronted him who immediately fled and ran towards the metal gate.  PW1 gave chase and eventually stopped him outside the metal gate. Case was reported.

5.  Police arrived and arrested Mr Zhang.  In the rucksack carried by him, police found, among other items, six pieces of plastic boards, a torch and a pair of foldable scissors.

6.  Mr Zhang was a holder of a Chinese two-way permit and he entered Hong Kong at 1807 hours on 24 December 2019 and was permitted to stay for 7 days.

Criminal record

7.  Mr Zhang enjoyed a clear record in Hong Kong.

Antecedents

8.  Mr Zhang is aged 41 (40 at the time of the offence), educated to F3 in the Mainland, and had worked as a casual construction site worker.  Mr Zhang is single and, before arrest, lived with his parent.

Mitigation

9.  Mr Stanley Lau of counsel mitigated on behalf of Mr Zhang.

10.  The following is a summary of the mitigation submissions.

11.  Mr Zhang was born in the Mainland and is ordinarily resident there.  He worked as a casual construction site worker earning RMB5,000 a month.  He pleaded guilty saving the time of court and showed remorse.

12.  Mr Lau submitted that there is no or no sufficient evidence to show either that Mr Zhang came to Hong Kong for the purpose of committing the present offence or that he knew there was/were occupant(s) inside the house.

Sentence

13.  The usual sentence in a case of burglary of domestic premises is 3 years’ imprisonment after trial.

14.  If an offender comes to Hong Kong from the Mainland on a two-way permit specifically to commit a serious crime, this will constitute an aggravating factor: HKSAR v Chau Chun Yee [2001] 3 HKC 605, 608.

15.  I am satisfied that from the time he came to Hong Kong and from the items that he was found carrying, there is sufficient circumstantial evidence to conclude that Mr Zhang came to Hong Kong specifically to commit one or more serious crimes, of which the present offence is one.

16.  There is also the additional aggravating factor that Mr Zhang committed the offence at a time when the domestic premises was likely to be occupied and it was in fact occupied resulting in a confrontation between the occupant and Mr Zhang.

17.  For the dual aggravating factors aforesaid, I shall add on 6 months to the basic starting point of 3 years resulting in an enhanced starting point of 3 years 6 months.

18.  Having a clear record in Hong Kong is not much of a mitigating factor for someone who ordinarily resides outside Hong Kong.

19.  For his plea of guilty, Mr Zhang shall be entitled to the full 1/3 discount.  I can find no other mitigating factors of sufficient weight to justify any other discount in the case of Mr Zhang.

(Mr Zhang, please stand)

20.  In the result, Mr Zhang shall serve a term of 2 years 4 months’ imprisonment.