HKSAR v. ZHU CHAOJIAN

DCCC 443/2023

[2024] HKDC 556

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443 OF 2023

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REASONS FOR SENTENCE

The defendant faces 3 charges of "Burglary". He pleaded guilty to Charges 1 and 2. The prosecution applied to leave Charge 3 in the court file; not to be proceeded against the defendant without leave of court. I granted the application.

Summary of Facts

Background

2.  In January 2023, the Mariners' Club situated at No.11 Middle Road, Tsim Sha Tsui ("the Club")  was under reconstruction.

Charge 1

3.  About 8:30 a.m. on 14 January 2023, Mr. Wong (PW1)  returned to the room marked "Shun Hing (Air Con)" situated at the 7^th Floor of the Club ("Scene 1").  He found the door having been opened with the padlock missing.  Upon checking, PW1 found 4 electric drills, 4 electric screwdrivers and 2 cutting machines (valued at $8,600 in total)  missing.

Charge 2

4.  About 8:30 a.m. on 14 January 2023, Mr. Chui (PW2)  returned to the room marked "Shun Hing (Ventilation Pipe)" situated at the 7^th Floor of the Club ("Scene 2").  He found the door having been opened with the padlock missing.  Upon checking, PW2 found 2 hydraulic drills, 2 grinders and 10 batteries (valued at $14,000 in total)  missing.

Arrest and admissions

5.  In the evening on 17 January 2023, PC 16743 arrested the defendant in Sham Shui Po for "Burglary".

6.  Under caution for stealing tools from Scenes 1 & 2, the defendant said as the Chinese New Year was approaching, he was unemployed and in need of money.  Out of greed, he stole some equipment to sell.  He had sold the equipment at Ap Liu Street.

7.  In his video recorded interview, the defendant admitted having entered some rooms on the 7^th Floor of the Club.  He had sold the stolen properties at Ap Liu Street and had spent all the money.

Mitigation & Sentence

8. The defendant is 30 and has a clear record. Defence counsel Mr. Chan informed me that the defendant is married with 2 sons (aged 5 and 1). He was a part-time construction worker earning about $10,000 per month. The defendant's wife and children receive social welfare. In mitigation, Mr. Chan submitted that the defendant acted alone. There is no evidence showing that any tools were used for breaking into the 2 storage rooms. Furthermore, the stolen properties were not of high monetary value.

9. I have asked Ms. Lo of the prosecution if there was any CCTV footage which captured the 2 burglaries. She replied in the negative. She also confirmed that but for the defendant's own admissions, there would be insufficient evidence to support Charges 1 or 2.

10. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant committed 2 burglaries within the same day is an aggravating factor[1]. On the other hand, Mr. Chan submitted that although 2 storage rooms were involved, they appeared to belong the same company and that Scenes 1 and 2 can be considered as a part of the same construction site. I see some force in Mr. Chan's submission. On this basis, I would not increase the starting point of each charge.

> 11. For Charges 1 and 2, I adopt a starting point of 2.5 years' imprisonment each. With the timely guilty plea, the sentence for each charge becomes 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 20 months' imprisonment for each charge.

12. I am aware that the evidence against the defendant came primarily from his own admissions. I accept that this is to his credit[2]. Bearing in mind the totality principle, I order 2 months in Charge 2 to run consecutive to Charge 1. Thus, arriving at a total prison term of 22 months for Charges 1 and 2.