DCCC 71/2013





Huang Jian

Before: HH Judge Tallentire

Date: 28 February 2013 at 10.20 am

Present: Ms Janice Cheuk, PP of the Department of Justice, for HKSAR
Mr Yiu Kwai-hung, of K H Yiu & Associates, assigned by the Director of Legal Aid, for the defendant

Offence: Burglary (入屋犯法罪)


Reasons for Sentence


1. Defendant, you have pleaded guilty to a single offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210. You admitted the facts and I convicted you.

2. What happened is this. On 21 November last, PW1 left his 11th floor flat, 144 Johnston Road, Wanchai at 8.30 am. He left it secure. He returned at 9.30 pm to find the metal gate and the main door prised open. Upon checking, he found that a camera worth $8,000was missing, a Sony mobile phone valued at $5,000 was missing and $3,500.

3. At about 6.15 pm that day, PC10824, PW3, and other officers saw you outside 148 Johnston Road acting furtively. You were interceptedand searched. Inside the bag you were carrying was found the camera. You claimed that you had bought it in the mainland. PW1 arrestedyou.

4. You gave three video-recorded interviews under caution on 22 and 23 November. The gist was you said you came to Hong Kong between9 am and 10 am the day before via Lowu. The following day, you met one Ah Kin, who is Wanted Person 1, and his friend, Wanted Person2, in Wanchai between 4 and 5 pm. Together you entered a building and Wanted Person 1 told you to wait at the 5th floor. You saidyou did not know where they were going. Wanted Person 1 reappeared and gave you the bag, telling you there was a camera inside. He asked you to deliver it to the mainland. In return, you would be treated to a meal.

5. PW1 was able to confirm that the camera was his.

6. CCTV recorded you and Wanted Person 2 outside the building at about 4.47 pm. At about 4.49 pm, Wanted Person 1 let you both in. At 5.41 pm, you left with the bag. Less than a minute later, Wanted Person 1 and Wanted Person 2 left also. They appeared to beholding opened umbrellas.

7. The premises in question are domestic premises. You are a man of hitherto clear record.

8. On your behalf, Mr Yiu entered mitigation. That was limited mitigation because there was in fact little to say. From your antecedentstatement, it tells me you are 39 years of age. Mr Yiu told me that you are married with two sons aged 7 and 17. Both are studying. On the mainland, you had been employed as a garment worker earning between 2,000 and RMB3,000 per month. Your mother is 68 yearsof age and lives with your younger brother, and you give RMB300 each month to her. Your father died some time ago.

9. You met Wanted Person 1 and Wanted Person 2 by accident. Your participation in the burglary was not planned or premeditated. Theonly goods that you received from the burglary was the camera which is now to be returned to the victim. Unlike Wanted Person 1and Wanted Person 2, you made no effort to conceal your identity when leaving the building.

10. Mr Yiu said that you had come to Hong Kong on many previous occasions and had committed no offences. He reminded me that the usualstarting point was one of 3 years’ imprisonment for domestic premises. He stressed your plea of guilty at the earliest possibleopportunity, also that this saved considerable time and effort on the part of the prosecution. He said that your uncle who had broughtyou up as a child was now suffering from terminal cancer and it was your wish to see him before he died. He urged leniency.

11. I turn now to the sentence. I accept that your role was not planned and that you were not carrying the breaking tools. Nonetheless,you did take full part in this burglary. I note your clear record and of course your early plea of guilty.

12. In all the circumstances, there being no pressing mitigation, I see no reason to depart from the usual sentence. I take as a startingpoint 3 years’ imprisonment reduced to 2. You will go to prison for 2 years.

District Judge