HKSAR v. TIAN HONGLIANG AND ANOTHER

DCCC 543/2023

[2024] HKDC 315

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2023

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged with conspiracy to burgle, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  D1 was also charged with unlawful remaining contrary to section 38(1)(b)  of the Immigration Ordinance, Cap 115, while D2 was also charged with going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap. 210.  The defendants pleaded guilty to the conspiracy, and D1 also pleaded guilty to the immigration offence, they admitted the facts and were convicted accordingly. Charge 3 was left on the court file not to proceed without leave.

FACTS

2.  On 14 December 2022, at around 3:30pm Mr Pang checked correct the lift machine room (“the Room”)  on 24/F Arther Commercial Building and secured the door by a padlock.  A no entry without permission notice was posted on the door.  At around 8:45pm a worker found the padlock gone missing.

3.  Time being at around 8:30pm, D1 & D2 were observed leaving the Building, and D2 had a bag full of items in his hand. Police intercepted D2 for enquiries. Upon search, among other things, a crowbar, 2 screwdrivers, a spanner, a pair of gloves and 8 skeleton keys were found inside the bag.  Both of the defendants were arrested for attempted burglary. D1 was also in possession of a pair of gloves.

4.  Upon checking, prize mark was observed at the door lock of the Room and an umbrella was left inside.  Further investigation revealed that D1 entered Hong Kong unlawfully the week before. The duo had phone calls between 12 and 14 December 2022.  They entered the Building around 5:31pm and 5:36pm on 14 December 2022 respectively, and D1 left an umbrella inside the Room. 

5.  At the material times, D1 and D2 conspired together to burgle the Room.  D1 entered Hong Kong unlawfully and remained without authority. 

MITIGATION

D1

6.  D1 aged 48, Mainland resident, married but separated with 2 children.  He has been unemployed since 2019 and his last gainful employment was working as a lorry driver in Shenzhen earning RMB5,000 per month.

7.  D1 has 3 previous convictions, including 3 counts of burglary and 2 counts of unlawful remaining. He was sentenced to a total of 51 months’ imprisonment for 3 counts of burglary and 1 count of unlawful remaining in June 2018.  After that he was sentenced to 17 months for unlawful remaining in April 2021.  

8.  D1 conspired with D2 to burgle the lift machine room of a commercial building in Kowloon.  They equipped with tools for the burglary, the door was prized open, D1 left an umbrella inside the room.  D1 pleaded guilty and has been remanded since his arrest.  D1 understands that immediate imprisonment is inevitable and the court might enhance the starting point in view of his previous criminal records.  Although it was well settled that the sentence for burglary should run consecutively to the sentence for unlawful remaining, D1 pleads leniency and urges the court to consider a partial concurrent sentence.

D2

9.  D2 aged 47, single staying in temporary hotel accommodation at the time of arrest.  He used to work as a casual artificer at construction site, but has been unemployed since 2020. 

10.  D2 has 16 previous convictions, including 12 counts of burglary, 2 counts going equipped for stealing, one count of handing stolen goods, and the remaining mainly related to dangerous drugs.  He was last sentenced to 24 months’ imprisonment for 2 counts of burglary committed in May 2021 and was released on 9 December 2022.  He committed the present case on 14 December 2022.

11.  D2 conspired with D1 to burgle the lift machine room of a commercial building in Kowloon.  They equipped with tools for the burglary, the door was prized open, D1 left an umbrella inside the room.  D2 did not take an active part in gaining entry to the Room.  They did not encountered or confronted any person in the Building and nothing gone missing.  That D2 is a repeat offender and reoffended shortly after release from prison are aggravating factors but the court is urged not to enhance the starting point by more than 3 months.

SENTENCE

12.  The customary starting point of sentence for non-domestic burglary is 2.5 years’ imprisonment.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.  Same principle is applicable to domestic and non-domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.

13.  Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai CACC338 & 339/2007 a case of burglary of non-domestic premises:-

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see Rv Wong Man unreported, CACC 372/1992). The starting point can be adjusted upwards if there are aggravating circumstances such as: (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences.”

14.  In the present case, the duo conspired together to burgle the lift machine room of a commercial building.  Both of them are repeat offender of similar offences.  They purchased tools (including crowbar, screwdrivers, spanner, and skeleton keys)  for the burglary, each of them also brought along a pair of gloves.  The door was prized open; at least one of them went inside the room and left behind an umbrella.  All these suggested the two professional burglars conspired to commit a well-planed burglary.   

15.  The usual starting point for non-domestic premises is one of 30 months’ imprisonment.  Yet the facts that it was a joint enterprise by two professional burglars and their respective previous burglary conviction records are distinct aggravating features.  I consider the appropriate starting point for charge one should be one of 36 months.  The defendants are entitled to 1/3 discount for their plea and I do not consider there to be any further mitigating factor.

16.  In relation to the immigration offence, a term of 15 months’ imprisonment after a guilty plea for a fresh offender has been settled as the appropriate starting point in R v So Man-king & Ors [1989] 1 HKLR 142. This is D1’s third conviction on unlawful remaining since 2018.  I consider the appropriate sentence upon plea is 21 months’ imprisonment. As the defence submitted, it has also been well settled that the sentence for burglary should run consecutively to the sentence for unlawful remaining: HKSAR v Kei San Man & Anor. CACC246/1999 (10 September 1999, unreported).  Yet having considered the totality principal, I order 15 months of unlawful remaining to be served concurrently with that for the burglary.

ORDER

Charge 1 D1 is sentenced to 24 months’ imprisonment.

D2 is sentenced to 24 months’ imprisonment.

Charge 2 D1 is sentenced to 21 months’ imprisonment, 15 months served concurrently with Charge 1, making a total of 30 months.