HKSAR v. Lee Chiu Yui

DCCC 1079/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1079 OF 2013

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Reasons for Sentence

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1.The defendant pleads guilty to one charge of non-domestic burglary (1st charge) and another charge of unlawful remaining in Hong Kong (the 2nd charge).

2.The facts admitted by the defendant reveal that at around 1 am on 3 October 2013 a team of police officers spotted the defendant climbing over the fences into a construction site.  The defendant further climbed into a temporary office through an air-conditioner space.  He was intercepted by the police when he later climbed out of the construction site.  The defendant’s sling-bag was searched, with five screwdrivers, two pairs of pliers, one cutter, nine cutter blades, one pair of labourer gloves, one flashlight, one electric drill key and a hexagonal key found.

3.The defendant admitted that he had attempted to steal from the premises.  He had entered into Hong Kong illegally from Shenzhen three days ago. 

4.The person in charge of the premises confirmed that the premises had been cleared out, with all properties removed by the end of September 2013.

5.The defendant is now aged 38.  He has a criminal record of five convictions involving seven charges, five of which were for unlawful remaining in Hong Kong.

6.In mitigation, Mr Chan, solicitor for the defendant, tells the court that the defendant is a widower.  His wife died of cancer in 2011.  He was a resident in the Mainland before he illegally entered into Hong Kong on 30 September last year.

7.His 72-year-old mother was hospitalised for heart and blood pressure problems.  The defendant was in need of money for his mother’s medical expenses.  Hoping to get quick money, he came to Hong Kong and committed the offences.

8.Mr Chan asks the court to take into account the defendant’s confession in the first instance and that the premises suffered no loss.  It was also the first burglary offence committed by the defendant in Hong Kong. 

9.The court is also urged to consider that the defendant’s two children, aged 4 and 6 respectively, are not in proper care in the Mainland.

10.In the mitigation letter written by the defendant, it is noted that the defendant claimed his wife died in an accident in 2011.  He says he sneaked into Hong Kong, trying to steal here in order to get money for his mother’s medical expenses.

11.Mr Chan draws the court’s attention to three cases¹.  Relying on these cases, he asks the court to take 10 months’ imprisonment as the sentence for the second charge and to order a partly concurrent sentence for the two offences.

12.Save the first of the three cases in respect of the starting point for burglary, the other two cases cited by Mr Chan are not of any assistance to this court.

13.In R v Cheung Shing & Ors, the 10 months’ imprisonment for the charge of unlawful remaining was only a sentence ordered by the sentencing judge on the special facts of that case. That case laid down no principle that the proper starting point for the Immigration offence after plea should be 10 months’ imprisonment.

14.In HKSAR v Chan Chi Ping, a partly concurrent sentence was ordered by the Court of Appeal only because of the special circumstances of that case, in particular, the youth of the applicant.

15.2½ years’ imprisonment as the appropriate starting point for a single burglary of non-domestic premises has been well settled in AG v Lui Kam Chi [1993] 1 HKC 215.

16.In relation to the second offence, a term of 15 months’ imprisonment after a guilty plea has been settled as the appropriate starting point in R v So Man King [1989] 1 HKLR 142. 

17.It has also been well settled that the sentence for burglary should run consecutively to the sentence for unlawful remaining in Hong Kong:  see HKSAR v Kei San Man, CACC 246/1999 (unreported).

18.In the present case, I do not see any special circumstances such as strong humanitarian grounds warranting either a reduction in the starting point or a departure from the usual policy that the sentences should be consecutive.

19.I adopt 2½ years’ imprisonment as the starting point for the first charge.

20.For the Immigration offence, the defendant has repeatedly entered into Hong Kong unlawfully.  He is a persistent offender.  The previous sentences obviously could not deter him from coming to Hong Kong unlawfully.

21.In order to deter him from repeating the offence and in the interest of the community, I will enhance the starting point, applying the principle in HKSAR v Chan Pui Chi [1999]2 HKLRD 830.

22.I adopt 2½ years’ imprisonment as the starting point for the second charge.

23.The claim of the defendant that he was in financial difficulty in the need of money for his mother’s medical expenses is no mitigation in the case.  His motive of sneaking into Hong Kong to commit theft can hardly justify any reduction in the sentence.

24.The defendant must also appreciate that his family will suffer, if he is caught.  Hardship to his children is a matter he should have taken into consideration before he sneaked into Hong Kong and, in any event, not a mitigating factor.

25.I have taken into consideration all matters put forward by Mr Chan and the defendant in his mitigation letter.

26.I do not see any mitigating factors in the case except the defendant’s plea of guilty, for which he will get one-third reduction.

27.I have considered the principle of totality and find that the sentences in the two offences should run consecutively.

The sentence

28.The first charge:  20 months’ imprisonment. 

29.The second charge: 20 months’ imprisonment.

30.Both sentences to run consecutively, resulting in a total term of 3 years and 4 months.

Note:

1. (i) The Queen v Wong Man, CACC 372 of 1992

(ii) The Queen v Cheung Shing & Others, CACC 200 of 1996

(iii) HKSAR v Chan Chi Ping, CACC 184/1997

Please refer to CACC24/2014 for the relevant appeal(s) to the Court of Appeal.