HKSAR v. Hoang Van Cuong

DCCC 729/2018

[2019] HKDC 705

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 729 OF 2018

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 3 charges as follows:

(1) Taking employment whilst being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to section 38AA(1)(a) and (2) of the Immigration Ordinance, Cap. 115 (Charges 1 and 2);

(2) Burglary of a residential unit (Charge 3).

Facts for Charge 3

2.At 2245 h on 26^th February 2018, the resident and family returned home after a few hours out and found their flat burgled.  It was a flat on 7^th floor of a building on Wan Chai Road, Hong Kong.  A report was made to the police.  CCTV footage of the building showed a male in a facemask entered the passcode and entered the building at 1812 h.  The resident identified him as her former colleague working as a part-time waiter at the same restaurant.  He had asked her many times where she lived and once accompanied her to the entrance of the building.  She might have mentioned to him her exact address. 

3.A resident on the 4^th Floor had seen a suspicious male climbing down the building’s outside water pipe at 1855 h. 

4.The property missing included HK$4,000 in denominations of HK$50, HK$20 and HK$10, and other currencies the equivalent of about HK$5,661 in total, a collection of special-design red packets and a silver wrist chain.  There was damage to the front gate lock, which cost $500.   

5.The police arrested the Defendant 2 days later near his residence.  He had on him one of the special-design red packets reportedly missing from the burgled flat.  A search of his residence unfolded the silver wrist chain also reportedly missing from the burgled flat.  There was cash of HK$4,000 also in in denominations of HK$50, HK$20 and HK$10. 

6.In an interview under caution, the Defendant denied the burglary. 

Facts for Charges 1 and 2

7.The Defendant landed in Hong Kong unlawfully in June 2014.  His non-refoulement claim was rejected on 13^th August 2015.  His appeal was dismissed on 11^th August 2017. 

8.Investigation revealed that he had worked as a part-time waiter at South China Restaurant in South China Athletic Association on Caroline Hill Road, Hong Kong where the resident of the burgled flat worked.  He used the name “Chan Wing Hong” for the restaurant’s personnel record. 

9.Without the authority of the Director of Immigration, he was not permitted to take up employment for 1^st August – 28^th November 2017, the offending period for Charge 1, and for 21^st January – 26^th February 2018, the offending period for Charge 2. 

Background and mitigation

10.He is now 32 years of age.  He was born in North Vietnam.  He was married but separated with his wife since 2014.  He has a child, one year old now, by a Form 8 holder who had been sent back to Vietnam with the child last year.  

11.He had 6 records for theft by shoplifting, receiving jail terms ranging from 2 weeks to 2 months from January 2016 to April 2018.  The first five of them took place before the present case.  He was a persistent offender for theft.  This is an aggravating factor in his sentence.  His counsel does not argue otherwise. 

12.He had also a record for unlawful remaining, resulting in a sentence of 15 months in March 2019 (E/2759/14).  It related to his unlawful remaining on 11^th June 2014.  There was a lapse over 4 years between the offence and the plea and sentence as the case was repeatedly until completion of all his refugee claim proceedings in January 2019.   

13.He committed the present offence as he had not enough money for his daily living and medical expenses for the delivery of his child in Hong Kong.  

Sentencing guidelines for burglary of residential units

14.The Court of Appeal states that for burglary of domestic premises with no aggravating factors, 3 years shall be the proper starting point for a first offender of full age (R v Chan Yui-man [1989] HKCU 36).

Sentencing this Defendant

15.For Charges 1 and 2, ie the unlawful employment charges, I take a starting point of 3 months each. After the one-third discount for timely plea of guilty, the sentence is 2 months each.  These two charges can be construed as part and parcel of the same act.  The sentences can be concurrent.   

16.For Charge 3, ie the burglary charge, I consider an initial starting point of 3 years.  As he was a persistent offender for theft, I increase the starting point by 3 months for more deterrence.  After the one-third discount for timely plea of guilty, the sentence is 2 years 2 months.  I deduct 1 month for the recovery of, and the compensation for, most of the loss to the victims.  The sentence is 2 years 1 month. 

17.Unlawful employment charges usually carry sentences consecutive to other charges of a different nature.  However, he was only sentenced to 15 months last month by another court.    By totality, I order the sentences today to be all concurrent, ie 2 years 1 month in all.  This shall be consecutive to the sentence of 15 months he is serving.