HKSAR v. Wei Yongzhuang
Read the full judgment text of DCCC 607/2021 on BabelCite. This District Court judgment was delivered on 4 February 2022.
1. Mr Wei pleaded guilty before me to 3 charges on a Charge Sheet as follows.
Cites 2 cases
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DCCC 607/2021 [2022] HKDC 124 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 607 OF 2021 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.Mr Wei pleaded guilty before me to 3 charges on a Charge Sheet as follows. 2.Charge 1 is Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars are that he, on 13 December 2020, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor to 2nd Floor, Unit A1, Vista Stanley, No 20 Stanley Village Road, Stanley, stole therein two watches, cash of $2,000 Hong Kong currency, cash of $1,000 United States currency, cash of $300 Australia currency and cash of GBP200. 3.Charge 2 is Possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. Particulars are that he, on 14 December 2020, outside the entrance of the Cross-Harbour Tunnel, Wan Chai, in Hong Kong, had in his possession arms, namely one can of pepper spray, without a licence. 4.Charge 3 is Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. Particulars are that he, on 14 December 2020, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration. Facts admitted by Mr Wei 5.PW1 and his family resided in G/F to 2/F of a house on Stanley Village Road. 6.On 13 December, at about 10 am, PW1 and his wife left their home. Their son also left at about 12:15 pm. When PW1 returned at about 7:30 pm, he found the window at the G/F living room was broken. His home had been ransacked. 7.The following items were missing:-
8.At about 4:12 am on the next day, the police intercepted a taxi outside the entrance of the Cross-Harbour Tunnel in Wan Chai. Mr Wei and another man were in the rear seat. 9.A detective constable PW3 requested Mr Wei to produce his identity card. Mr Wei replied that he did not have one. Upon search, the following items were found in the left front pocket of Mr Wei’s pants:-
10.The following items were found in Mr Wei’s backpack:-
11.PW3 arrested Mr Wei for the offences of “Remaining in Hong Kong without the authority of the Director of Immigration”, “Possession of arms without a licence” and Burglary. 12.Cash of HK$20 was also found in the right back pocket of Mr Wei’s pants. 13.During a cautioned VRI conducted on 15 December 2020, Mr Wei stated:-
14.Mr Wei now admits that he entered PW1’s home as a trespasser and stole therein; that he possessed the can of pepper spray without a licence; and that he having landed in Hong Kong unlawfully, remained without the authority of the Director of Immigration. Criminal record 15.Mr Wei has 5 previous convictions of burglary all sentenced together in 2015. On that occasion, Mr Wei, apart from being ordered to pay one sum of $2,000 compensation to the victims, received concurrent prison terms of 25 months after plea for each offence. Antecedents 16.Mr Wei is aged 33 (32 at the time of the offences), a Mainland resident and educated to secondary level there. He was a factory worker. He is married and lived with his wife in Guangxi. Mitigation 17.Mr Newman Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Wei. 18.The following is a summary of the mitigation submissions. 19.The premises were burgled when vacant so no one was alarmed. Two Rolex watches and part of the stolen cash were recovered. The pepper spray was for the purpose of self-protection against wild animals like boars as he, being an illegal immigrant, was expecting to live in the wild. 20.The normal starting point for domestic premises burglary is one of 3 years. As Mr Wei has entered HK as an illegal immigrant and has previous convictions for offences of an identical nature, it is accepted that the court is entitled to take a higher starting point: HKSAR v Song Jianhua, CACC 362/2006. 21.For the 2nd charge, ie possession of pepper spray, there is no sentencing guideline. In HKSAR v Chau Lap Pui [2007] 2 HKC 342, a starting point of 6 months’ imprisonment was adopted on appeal. 22.For the 3rd charge, the unlawful remaining charge, a 15 months’ term has been approved for defendants after a guilty plea: R v So Man King & Ors [1989] 1 HKLR 142. 23.The main factor for mitigation is Mr Wei’s guilty pleas. 24.As the offences are separate or unrelated in nature, Mr Wong is not in a position to ask for wholly concurrent sentences on behalf of Mr Wei. However, Mr Wong submits that after considering totality, the court may still order partially concurrent sentences. Mr Wong reminded the court that in HKSAR v Wong Tak Po, HCMA 914/2002, Deputy Judge Line (as he then was) considered that 7 months of the 15 months’ term for the unlawful remaining should be ordered to run concurrently with the terms of two robbery charges. 25.Lastly, Mr Wong submitted a mitigation letter written in Chinese by Mr Wei himself. The contents are generally that Mr Wei committed the offences for economic reasons resulting from his grandfather’s medical issues, family expenses and Covid-19; that Mr Wei is now regretful and promises never to re-offend; he asks for a lenient sentence. Sentence 26.I generally accept Mr Wong’s submissions regarding the starting point and sentence after plea, as the case may be, of the 3 offences. For Charge 1, I will adopt a starting point of 3 years 6 months bearing in mind the aggravating factors identified by Mr Wong. 27.For Charge 2, I will adopt a starting point of 6 months. 28.For Charge 3, I will adopt a sentence after plea of 15 months’ imprisonment. 29.Mr Wei pleaded guilty in good time and he shall enjoy a sentencing discount of 1/3 in respect of Charges 1 and 2. 30.The three offences were completely disparate in terms of their nature and ought, subject only to totality which I shall consider, to attract wholly consecutive sentences. 31.The following are the sentences that I shall impose. (Mr Wei, please stand) 32.For Charge 1, Mr Wei is to go to prison for 28 months. 33.For Charge 2, he is to go to prison for 4 months. 34.For Charge 3, he is to go to prison for 15 months. 35.I order that the sentence on Charge 2 is to run wholly consecutively to that on Charge 1; and that 8 months of the sentence on Charge 3 are to run consecutively to the sentences on Charges 1 and 2. The resulting aggregate sentence is therefore 40 months’ imprisonment.
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