HKSAR v. Liu Deibin and Others

DCCC 264/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 264 OF 2014

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Reasons for Sentence

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1.There are 7 defendants in this case. Together they face one joint charge of burglary (charge 1). D4 faces one additional charge of remaining in Hong Kong without the authority of the Director of Immigration (charge 2) as well as one charge of using a forged identity card (charge 4). D5 faces one additional charge of remaining in Hong Kong without the authority of the Director of Immigration (charge 3).

2.When trial commenced, all 7 defendants pleaded not guilty to the burglary charge. D4 and D5 however pleaded guilty to their respective immigration and using forged identity card charges.

3.On the 7^th day of trial, D1 to D5 reversed their plea on charge 1 and pleaded guilty to burglary. D6 and D7’s trial proceeded and they were both convicted after trial.

Background

4.Based on information received, Police conducted covert surveillance on the defendants, whose names, age, height and outward appearance were known to the Police some 2 weeks before the burglary. There were also photos of the defendants distributed to the Police officers involved in the case for them to familiarize themselves with the outlook of the defendants and assist them in their surveillance.

5.A unit on the first floor of a building at no.135 Tai Nam Street was identified as the hide out of the defendants and D6 and D7 were seen to enter and exit the building on various occasions.

6.Brand Off Tokyo located at Shop B1 of Star House was identified by the Police as the defendants’ target of burglary.

7.On the night of 5^th December, police officers were deployed at different surveillance points in the vicinity of Star House in anticipation of the burglary.

8.At 3:06am on 6^th December, D1 and D6 arrived at Star Ferry pier. D2, 3, 4, 5 arrived together later in a taxi. D7 was not spotted by the Police officers but according to his later confession, he was in a vehicle (licence plate MY217) that arrived at the pier and deliver 2 backpacks to one of the defendants. The contents of the backpacks were later found to include a crowbar and other equipment intended to be used in the burglary.

9.D1 to D5 stayed and wandered around the vicinity of Star Ferry pier. D6 wandered around for a while in the area at first, and then took a 3 minute taxi ride to Austin Road and got off and wandered around there alone.

10.At 5:34am, D1 and D5 were seen to walk up the steps leading to the glass door entrance of Brand Off Tokyo. They used a crowbar and screwdriver to force open the glass door. One of them then signaled the other 3 defendants, who then quickly joined them up the steps and all 5 of them entered the glass door.

11.The footage does not show what happened after their entry but about 3 minutes later, all 5 of them were seen to quickly rush out from the same entrance. Police officers waiting in ambush came out and arrested D1 to D5. Meanwhile, Police officers who were tracking D6 in the Austin Road and Canton Road area also arrested D6.

12.At around the same time, an unmarked Police vehicle spotted MY217 in a bus lane of the bus terminus of Star Ferry pier and proceeded to intercept it. The vehicle suddenly moved forward, collided with the Police vehicle, reversed and then wriggled out of the lane and sped away. The vehicle was eventually found abandoned at a car park in the Tsim Sha Tsui area. Closed circuit television footage caught the driver getting out of the car and then a taxi to get away. Eye witness saw the driver taking off a jacket before leaving the vehicle.

13.D7 was arrested at Lo Wo Control Point the same morning at around 7 odd am and was taken to Ta Kwu Ling Police station where he was later dealt with by PW5 who cautioned and arrested D7 for the earlier burglary and collision of MY217 with the Police vehicle. Under caution, D7 said that he was only just sitting in the car ‘watching water’ (keeping a lookout), that he was not the driver and he did not know the driver. This confession was recorded in the Police officer’s notebook and D7 signed at various locations and wrote down that he understood as well as copied a declaration stating that he had nothing to add or amend. D7 was then taken to Cheung Sha Wan Police station where a video recorded interview was conducted. When PW5 sought to confirm with D7 his confession, D7 said he did not say those words.

Previous convictions

14.D1 has 3 previous convictions. 2 of those in 1992 with one being for possession of an identity card relating to another person and one for unlawfully remaining in Hong Kong. His third conviction was also for unlawfully remaining Hong Kong, which was in December 1993.

15.D2 and D3 are of previously clear record.

16.D4 has 10 previous convictions. He was convicted of theft and unlawfully remaining in Hong Kong when he was 13 years old. He was convicted of possession of offensive weapon and unlawfully remaining in Hong Kong when he was 14. He was convicted of unlawfully remaining and attempted robbery when he was 18. D4 was convicted of unlawfully remaining in Hong Kong in 2005, 2007, 2009 and 2010. D4 was last convicted in 2012 for going equipped for stealing and unlawfully remaining.

17.D5 has one previous conviction for attempted burglary in 2012 when he was sentenced to 22 months’ imprisonment.

18.D6 has 5 previous convictions. He was first convicted for giving false information and furnishing false particulars to registration officer in 1987 when he was fined. He was convicted in the same year of aggravated burglary and was sentenced to 4 years’ imprisonment in the High Court. D6 was convicted of burglary in 2005 and was sentenced to 30 months’ imprisonment in the District Court. D6’s last conviction was in 2009 for loitering when he was sentenced to 28 days’ imprisonment suspended for 12 months.

19.D7 has 3 previous convictions. The first was when he was 20 years old for assault occasioning actual bodily harm. He was then sentenced to 7 years’ imprisonment one year later when he was 21 for trafficking in dangerous drugs. His last conviction was in 2008 for attempted theft when he was sentenced to 20 months’ imprisonment in the District Court.

Mitigation

D1

20.D1 is a mainlander and is educated up to primary 6 level. He is single and living alone. D1 worked as a delivery worker earning $1,800 per month, but was unemployed before he came to Hong Kong. D1 committed the offence for money. He was promised by someone $5,000 if the burglary was successful. It is submitted that D1 was not the mastermind of the burglary.

21.Mr. Tam for D1 submitted that although D1 only pleaded guilty after the trial had started and during the evidence of PW3, it was still a relatively early stage of the trial and there was still considerable saving of court’s time and cost. Even if the court may not grant him the full one third discount, at least a 25% discount should be given.

22.D1’s previous convictions were some 10 years ago and they were not similar offences.

23.D1 suffered injuries in this case and his left eardrum was punctured resulting in partial loss of hearing.

24.The store did not suffer any loss except for the damaged door.

25.Mr. Tam had explained to the defendant the sentencing tariff and that he will be facing an immediate custodial sentence.

D2

26.The defendant is 33 and originally from JiangXi in China. His parents are still working there as farmers. The defendant was living with his girlfriend and their 2 daughters in Shenzhen, where the defendant came to Hong Kong from. Prior to that, the defendant was working as a salesperson in Carrefour store, earning about RMB2,500 per month. The defendant would contribute $300 to his parents each month.

27.D2 knew he was about to have another child and so needed extra money for all the accompanying expenses. The defendant got to know a Ah Chiu who does parallel import. D2 at first thought that it was what he was going to do, but once in Hong Kong, he found out they were going to steal. D2 was promised $30,000 reward and he called his Hong Kong contact to confirm whether he was really going to have 30K. D2 committed the offence for money. He however ended up never getting any money in the end.

28.D2 admitted to his guilt, although only on the 7^th day of trial. Had the trial gone on, the prosecution will have to call at least 5 more witnesses, thus significantly lengthening the trial. In relation to discount, D2 understands that it may not be the full one-third, but still wishes for a lenient discount. Counsel for D2 accepts that there are aggravating factors including the commission of the crime by a group, tools being used, planning and premeditation, but still seeks leniency.

D3

29.D3 is a fisherman in mainland China earning around 2000 to 3000 each month. His father and mother are respectively 73 and 65, both retired. D3 has a clear record both in China and in Hong Kong.

30.In relation to the case, counsel for D3 first of all pointed out that it was a non-domestic premises. In the whole case, no other people were frightened. As D1 and D2’s counsel said, there was no loss apart from the damaged door. D3’s role was not the most important one, because D3 only arrived in Hong Kong on 5th December and then he went to sleep in the Tai Nam street premises. On the day, someone woke him up, D3 did not know what to do at first, just later knew it was going to be a burglary. Counsel pointed out that there is no evidence to show D3 had taken part in the organization or planning of the crime.

31.Counsel informed the court that D3 had told counsel that he wanted to plead guilty on the fifth day of trial but had to wait for the right time. Wish for the full one-third discount.

D4

32.Contents of D4’s antecedents statement was agreed, except that D4’s children are now aged 10, 8 and 6.

33.The defendant was born in Guangdong, educated up to primary two level. He worked as a farmer and a security officer. His 3 children are all studying and all relying on D4. Now that D4 is convicted, his family will be in a very difficult situation. Counsel pointed out that although D4 did not enter a timely plea, it was still at the early state of the trial that he reversed his plea of not guilty and wish to be granted a lenient discount.

34.In relation to the case, although D1 to D5 did use tools to pry open the door, the tools were not used to attack anyone. The burglars left when they saw that they were being ambushed, there was no intention to assault anyone. D4 was not the mastermind although he did sign the tenancy agreement for the renting of the Tai Nam Street premises. D4 just received the SIM card from someone.

Charge 2 and Charge 4

35.Counsel submitted that the sentences for charge 2 and 4 should be made wholly concurrent. D4 was just directed to rent the Tai Nam Street premises with the forged identity card, he was not the mastermind of the plan.

D5

36.Contents of D5’s antecedents statement are agreed, save that the defendant had not contacted his elder brother for a long time. D5 is also a mainlander.

37.Counsel accepted that the defendant’s previous records can count against him as an aggravating factor. The defendant although did not enter a timely plea, it was still at the early stage of trial and the defendant’s plea did save time and money.

38.D5 is educated up to primary 3 level. He has 2 elderly parents who are both farmers, and they rely on D5’s income. D5 worked in ShenZhen a few years, but work was not stable. If the defendant had work, he would earn around $100. Counsel pointed out that D5’s is a secondary role, the phone records do not show his phone number. D5 was just following the others’ lead and committed the offence because of financial difficulty.

D6

39.Contents of D6’s antecedent statement are admitted. D6 was working as a decoration worker earning around $12,000 per month. He is married and is the family’s sole support. The defendant’s wife is 52 and a housewife. Their eldest child is in university, with a school fee of about 90,000 per year. Their younger child is in secondary school.

40.D6 was convicted after trial, but prosecution’s evidence was mostly admitted and little time was wasted. D6 is relatively older in the case, and had been in remand for about 4 months. D6 hurt his right elbow whilst he was on bail and needs follow up treatment. D6 was still on sick leave. Counsel pointed out that here is no evidence to prove that D6 knew that the other burglars were illegal immigrants.

D7

41.Contents of D7’s antecedent statement are admitted. D7 worked as a decoration worker and then a painter, earning on average $15,000 per month. D7 is a Hong Kong resident and his wife and 4 year old son have been granted their one way permit to come to Hong Kong to live with D7 and his mother. Although D7 has one attempted theft conviction in 2008, D7 had been a law abiding citizen after his son was born.

42.Although D7 was convicted after trial, most of the evidence of the prosecution was agreed. There was just the special issue to be dealt with by way of alternative procedure which lasted merely half a day.

Sentencing tariff and cases

Burglary

43.The maximum sentence for burglary is that of 14 years’ imprisonment. Burglary of a non-domestic premises attracts a starting point of 2 and a half years’ imprisonment without mitigating or aggravating circumstances[1].

Unlawfully remaining

44.The maximum sentence for someone who having illegally entered Hong Kong remained without the authority of the Director of Immigration is that of level 4 fine and 3 years’ imprisonment.

45.In the case of HKSAR v Tran Viet Thanh, CACC 54 of 2011 (heard together with CACC 221/2011 and HCMA 360/2011), the Court of Appeal had the opportunity to review cases in relation to sentencing on illegal remaining cases.

“12. This Court has considered the sentence for each of the following categories of cases based on a guilty plea:

Unlawfully remaining:

(1) 15 months’ imprisonment: The Queen v. So

Man-king and Others [1989] 1 HKLR 144 affirming a long line of authorities of this Court beginning at least from Chan Shau-kin & Others v. The Queen CACC 934/1981 and the later case of The Queen v. Lau Chung Kwan [1987] HKLR 204 had held that a 15-month sentence was appropriate to deal with the problems associated with the influx of illegal immigration into Hong Kong. In both of these cases the defendants were illegal immigrants who used either a forged identity card or an identity card belonging to another persons.

(2) As recognized in So Man-king at page 145 the court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person’s identity card to obtain some particular benefit. Earlier at page 144, this Court discussed the sentence of using a forged identity card or using the identity card of another person :

(3) ‘ It has to be acknowledged that there may be circumstances in which the use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong.’”

“17. It is clear that a sentence of 15 months’ imprisonment for possession of a forged identity card by an illegal immigrant is consistent with the long-established authorities. Further as apparent from Chan and Tam and Wong Ping this Court has consistently imposed a concurrent sentence for forged identity card offence and unlawfully remaining in Hong Kong in the absence of exceptional circumstances. The rationale, as stated in So Man-king, is that the substantial element in sentencing for the offences is the unlawful presence in Hong Kong. The mere production of the identity card when an illegal immigrant was intercepted was not regarded as a special feature which justifies a departure from the concurrent sentence approach. This line of authorities is binding on this Court and on the Court of First Instance. ”

46.As to whether the illegally remaining sentence and the using a forged identity card should be concurrent, consecutive or partially concurrent, the Court of Appeal has this to say:

“The underlining criminality of an illegal immigrant in possession of a forged identity card is his unlawful presence in Hong Kong. This is the mischief that the deterrent sentence of 15 months’ imprisonment is aimed at. The forged identity card must primarily be for the purpose of ensuring his illegal status in Hong Kong would not be so easily detected. If he makes use of the card for a benefit, such as seeking employment, then the 15-month sentence can be adjusted upwards.

23. The enhancement provides a degree of flexibility in arriving at the appropriate sentence even if the two sentences remain concurrent. Wong Ping did not state categorically that there must be concurrent sentences. Whether in a case there should be consecutive sentences must be fact specific. By giving a proper adjustment to the standard sentences, we do not envisage in a normal situation that there is a real need to use a partially consecutive sentence approach.”

Sentence

Aggravating factors common to all defendants

47.There was premeditation and careful planning in the burglary, as evident in how D6 would provide the phone SIM card to D4, how D4 used a forged identity card to rent the Tai Nam Street premises as a hide out, how D6 and D7 would bring supplies to the premises and how a car was stolen beforehand to be used as their vehicle in the burglary for delivery of the backpacks and no doubt for the subsequent getting away. The burglary was clearly the work of professionals engaging those who have little or nothing to lose from mainland China to do the dirty work for relatively small amount of money, as we have heard from D1 and D2 in mitigation.

48.The burglary involved at least 7 people. Of those 7 people, 5 of them, D1 to D5 actually entered the premises intending to steal. Those organizing the burglary was no doubt anticipating a significant amount of loot to be handled once they got inside the shop, otherwise there was no reason to engage so many people.

49.All 5 defendants who entered the premises were mainlanders who came to Hong Kong with the specific purpose of committing the burglary. D6 and D7 were obviously their contacts in Hong Kong.

50.Tools including a crowbar and a screwdriver were used to pry open a formidable looking anti-burglary door. Gloves and masks were found inside the backpacks which would no doubt have been used by the defendants so that their faces might be concealed and fingerprints not left at scene.

51.I find these aggravating factors in relation to the burglary charge and are common to all the defendants.

The timing of D1 to D5’s guilty plea to charge 1

52.I find that although the defendants had pleaded guilty only after the commencement of trial, we were still in the early stage and there was significant time and costs saving as a result of their guilty pleas. The defendants however did not enter a guilty plea earlier which resulted in the prosecution having to spend more time and money getting ready for trial. I find that there should not be a full one-third discount, but a discount of slightly more than 25%.

Aggravating and mitigating factors in relation to individual defendants

D1

53.I find that there are no additional aggravating factors other than the common ones identified above. D1’s convictions were a long time ago and I do not find them an aggravating factor. There are also no mitigating factors other than his guilty plea.

D2 and D3

54.I find that there are no additional aggravating factors other than the common ones identified above. D2 and D3 are of previously clear record and I find that this is a mitigating factor.

D4

55.This is D4’s 9^th conviction for unlawfully remaining in Hong Kong. He was last convicted in 2012 for going equipped for stealing, which is an offence involving dishonesty. In relation to D4, I find that his appalling previous record is an additional aggravating factor, both in relation to his burglary charge and his unlawfully remaining charge.

D5

56.D5 has one previous conviction for attempted burglary in 2012. I find this an additional aggravating factor in relation to the burglary charge as he committed the present burglary offence not long after his release from prison.

D6

57.D6 was convicted of aggravated burglary in 1987, which is some 27 years from today. D6 was however convicted of burglary in 2005 and I find that this is an aggravating factor in relation to the present burglary charge.

D7

58.D7 was convicted for trafficking in dangerous drugs when he was 21. His last conviction was for attempted theft, an offence relating to dishonesty, in 2008 and was sentenced to 20 months’ imprisonment. It was some 6 years ago and I do not take that as an aggravating factor.

Sentences

59.In relation to all the defendants, based on the common aggravating factors alone, I find that an appropriate starting point is that of 3 and a half years’ imprisonment (42 months).  I will then consider the individual defendant’s aggravating or mitigating circumstances.

D1

60.42 months’ starting point, discounted by slightly more than 25% to that of 30 months’ imprisonment.

D2

61.39 months’ imprisonment based on a 3 month discount for his clear record, and then a slightly more than 25% discount for his guilty plea, with the resulting sentence of 28 months’ imprisonment.

D3

62.39 months’ imprisonment based on a 3 month discount for his clear record, and then a slightly more than 25% discount for his guilty plea, with the resulting sentence of 28 months’ imprisonment.

D4

Charge 1

63.42 months’ starting point, adjusted upwards by 3 months in view of his criminal record to that of 45 months’ imprisonment. Discounted by slightly more than 25% to that of 33 months’ imprisonment.

Charge 2

64.Given that this is D4’s 9^th similar conviction for unlawfully remaining in Hong Kong, but given that D4 had pleaded guilty on the first day of trial, I will grant him the usual one-third discount on this charge and sentence him to 21 months’ imprisonment, this being the sentence after plea.

Charge 4: using a forged identity card

65.I find that it is an irresistible inference that D4 must have known the Tai Nam Street place was being used for some sinister and illegal purpose given that he was there as an illegal entrant to Hong Kong and was using a forged identity card to do the rental at the estate agent. This is a factor that would require the sentence to be adjusted upwards. The maximum sentence under this charge is that of 10 years’ imprisonment. I will adopt a starting point so as to result in a discounted sentence of 21 months’ imprisonment and order this sentence to be served concurrently to the sentence in charge 2.

Totality

66.D4 had entered Hong Kong illegally with the specific purpose of committing the burglary. This is his 9^th conviction on unlawfully remaining. The use of the forged identity card to rent the Tai Nam Street premises is directly linked to his commission of charge 1. Having taken a step back, I order that 6 months of the sentence in charge 2 and 4 be served consecutively to the sentence in charge 1, taking the final sentence to that of 39 months’ imprisonment.

D5

Charge 1

67.For D5, based on his individual aggravating factor, I adopt a starting point of 45 months’ imprisonment, granting him a discount of around 25%, taking the sentence to 33 months’ imprisonment.

Charge 3

68.In relation to the unlawfully remaining charge, there are no aggravating factor and I adopt the usual starting point for a person committing the offence the first time and grant him the full one-third discount to result in a sentence of 15 months’ imprisonment after plea.

Totality

69.I was told by counsel for the prosecution that there are no sentencing guidelines as to whether the sentences should be concurrent or consecutive and that it is for the court to decide on a case by case basis.

70.D5 had entered Hong Kong illegally with the specific purpose of committing the burglary. This is his first conviction on unlawfully remaining. Having taken a step back, I order that 3 months of the sentence in charge 3 be served consecutively to the sentence in charge 1, taking the final sentence to that of 36 months’ imprisonment.

D6

71.I find D6’s role of liaising and assisting the other defendants no less culpable than those who actually entered the store on the night. For D6, based on his individual aggravating factor, I adopt a starting point of 45 months’ imprisonment on charge 1. Since D6 is convicted after trial, there is to be no discount and he is sentenced to 45 months’ imprisonment.

D7

72.Although the evidence show that D7 took part on the night of the burglary as a lookout, I find that he was also providing assistance to the other defendants prior to the actual burglary. D7’s role as a lookout is no less culpable than those who actually entered the store on the night.

73.There being no individual aggravating factor in relation to D7, I adopt a starting point of 42 months’ imprisonment and since D7 is convicted after trial, there is to be no discount and D7 is sentenced to 42 months’ imprisonment.