HKSAR v. Ho Fai

DCCC599/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 599 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two charges before me. The 1st charge is attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, and section 159G of the Crimes Ordinance.

2.You admitted that on 25 March 2011 you attempted to enter as a trespasser part of a building known as Block B6, Flamingo Garden, No. 8 Fei Wan Road, Fei Ngo Shan, Sai Kung, with intent to steal therein.

3.The 2nd charge to which you have pleaded guilty was unlawful remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.

4.You admitted that on 25 March 2011 you landed in Hong Kong unlawfully and remained here without the authority of the Director of Immigration.

5.In the early hours of 25 March 2011 at about 1.58 am police officers saw you and another male, that is a wanted person, climbing over the glass wall and entering the garden of the subject premises.  They saw that you and the other wanted person were attempting to lift up a roller shutter of the premises.  The wanted person was holding a tool in his hand.  Upon seeing the both of you, the officers went forward and attempted to intercept you both. The wanted person escaped whilst you were subdued by the two officers successfully.

6.You told the officers that you were in Hong Kong illegally, and later, that Ah Wai, the wanted person, had brought you to commit the burglary.  In a subsequent video-recorded interview you said that Ah Wai would reward you $100-$200 a day; you had come to Hong Kong illegally by boat; and it was Ah Wai, the wanted person, who led you to the premises.

7.Mr Cheung, your counsel, has mitigated on your behalf today.  I have taken into account all that he has had to say.

8.You are 26 years of age and are of clear record.  You are married with two young children, aged 15 months and 5 months. Ah Wai had told you that you might find work in Hong Kong and due to your financial constraints you came to Hong Kong illegally with him.  However, when you arrived in Hong Kong you were unable to find work at any construction site and that is when you were led into committing this offence by Ah Wai.

9.Mr Cheung rightly points out the guideline sentences for that of burglary and recognises that the Court of Appeal has laid down that sentences committed by illegal immigrants should run consecutive to each other.

10.Defendant, on Charge 1, had I convicted you after trial, you would have received a starting point of 3 years’ imprisonment.  However, I give you full credit for your plea of guilty and that term shall be reduced to 2 years’ imprisonment.

11.For the unlawful remaining charge, this is your first time in Hong Kong and the appropriate sentence then therefore is 15 months’ imprisonment.

12.The sentences, as Mr Cheung rightly stated, should run consecutive to each other, and in those circumstances you are sentenced to 3 years and 3 months’ imprisonment.