HKSAR v. Kot Lung and Another

DCCC 1290/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1290 OF 2010

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REASONS FOR SENTENCE

1.The defendants plead guilty to one joint charge of burglary of domestic premises, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210 (charge 1); and to charges of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115 (charges 2 & 3).

2.In summary on the morning of the 4th September this year Madam Cheuk left her home in Sha Tau Kok after securing the windows and doors of the home.  When she returned in the evening she found the window frame on the ground floor had been prized open and the home ransacked.  Personal items as particularised in the charge, including valuable watches and jewellery had been stolen.  The total value of the goods stolen was $55,350.

3.Meanwhile the police were patrolling along Sha Tau Kok Road when they intercepted the defendants.  The defendants were unable to produce any proof of identity and admitted they had come to Hong Kong illegally from the Mainland by hiding underneath a truck earlier the same day.  All the stolen items taken from Madam Cheuk’s home were found on the defendants.  In video interviews both defendants admitted prizing open the window and stealing the goods from Madam Cheuk’s home.

4.In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Yeung, including the reason why the defendants came to Hong Kong. 

Burglary

5.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 19).  Giving the defendants full credit for their pleas of guilty they are both sentenced to two years imprisonment on charge 1.

Illegally remaining in Hong Kong

6.In R v SO Man-king [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of fifteen months imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to depart there from.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.  

7.I am satisfied there are no strong humanitarian grounds to depart from the guidance given in SO Man-king.  D1 is sentenced to fifteen months imprisonment on charge 2. In the case of D2 this is his sixth conviction for illegally remaining.  D2 is sentenced to twenty one months imprisonment on charge 3.

Totality

8.Unlawfully remaining is separate and distinct from the burglary charge.  I order the sentences to be served consecutively to the burglary charge (see HKSAR v TONG Fuk-sing [1999] 3 HKLRD 710).  I am satisfied a total sentence of three years and three months imprisonment properly reflects D1’s criminal culpability on the two charges and a total sentence of three years and nine months imprisonment properly reflects D2’s criminal culpability.