HKSAR v. LUO QINGPING AND ANOTHER

DCCC 19/2022

[2022] HKDC 526

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 19 OF 2022

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REASONS FOR SENTENCE

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1.  D1 is convicted on his own plea and agreement to Summary of Facts to:-

(a)  a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 (Charge 1);

(b)  a charge of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232 (Charge 2);

(c)  a charge of going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210 (Charge 4);

(d)  a charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238 (Charge 5); and

(e)  a charge of 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 (Charge 7).

2.  D2 is convicted on his own plea and agreement to Summary of Facts to:-

(a)  a charge of resisting police officers in the execution of their duties, contrary to section 63 of the Police Force Ordinance, Cap 232 (Charge 3);

(b)  a charge of going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210 (Charge 4);

(c)  a charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238 (Charge 6); and

(d)  a charge of 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 (Charge 8).

Facts

Charges 2-8

3.  At 0322 hours on 18 September 2021, 3 police officers (PW1-3)  spotted D1 and D2 and a wanted person loitering at San Uk Tsai Tsuen, Sha Tau Kok Road, Fanling.  D1 was seen holding a crowbar in his hand.  D1 and D2 and the wanted person were peeping at the village houses.  PW1-3 on approaching alerted D1 and D2 and the wanted person.  They fled and PW1-3 gave chase. 

4.  PW1 chased after D1 and saw D1 dropping the crowbar onto the ground. PW1 caught up with D1 and grabbed D1’s left hand.  D1 struggle with PW1.  D1 attempted to punch PW1’s chest, which PW1 managed to dodge.  Due to D1’s fierce resistance, PW1 drew his baton and struck D1 on his thighs to stop him from resisting and escaping.  D1 and PW1 fell onto the ground where they continued to tangle with D1 punching and kicking PW1 to resist arrest.  Soon PW3 arrived and assisted PW1 to subdue D1.  The crowbar was recovered on the ground near D1. 

5.  Meanwhile PW2 and PW3 gave chase to D2 and the wanted person.  The wanted person fled towards an unknown direction.  During the chase, D2 fell onto the ground.  PW2 attempted to apprehend D2 who struggled fiercely and punched PW2’s left arm 3-4 times to resist arrest.  PW3 soon arrived to assist PW2 whereupon D2 was subdued.  PW3 then proceeded to assist PW1 to subdue D1.

6.  D1 and D2 were arrested.  They were both wearing gloves at the time.  D2 had a torchlight on his person.  The rucksacks carried by D1 and D2 were searched and each rucksack contained, inter alia, one balaclava mask, one spray canister and one pair of gloves.  D1’s rucksack also had a torchlight.  Both D1 and D2 had no proof of identity. 

7.  PW1-3 were sent to hospital where PW1 was found to have sprain on right ankle and both hands and knee abrasions.  PW2 was found to have right hand abrasions, left shin abrasions and bruise, right shin abrasions and 2 cm laceration.  PW3 was found to have sprain on left wrist, left index finger abrasion, left forearm abrasion. 

Charge 1

8.  In the evening on 22 August 2021, Choy Yuk Choy (PW10)  and her 2 children were alone at home at No 22 Leng Tsai Tsuen, Sha Tau Kok Road, Ma Mei Ha, Fanling, on the third floor when she heard a sound on the ground floor.  PW10’s home was installed with CCTV cameras.  CCTV captured 2 males outside her home. PW10 went to ground floor and found that one window grille was removed and the window was prised with a hard object.  The main door, which was previously locked, was also found unlocked.  No items were stolen.  The cost for repair of the window was $5,000.

9.  D1 under caution said, inter alia, that he smuggled into Hong Kong together with D2 and the wanted person on 17 September 2021 and the purpose of coming to Hong Kong was to commit burglary.  This was the second time that he smuggle into Hong Kong and the purpose of being at the village was to steal from houses.  He admitted possession of the seized items, ie crowbar, gloves, torch, balaclava mask, were for committing burglary.  The pepper spray was for self-defence and he said he had never used it in Hong Kong.  He admitted Charge 1 that he broke into the house by prising the window grille with a screwdriver. 

10.  Under caution D2 said, inter alia, that he smuggled into Hong Kong on 16 September 2021 from Shenzhen with D1 and the wanted person on 17 September 2021.  The purpose of coming to Hong Kong was to steal and burgle.  When asked about the use of the balaclava mask, he said it was to conceal his face.  When asked about the pepper spray, he said it was for self-defence and to be used when being chased by Mainland police.

11.  The 2 spray canisters seized from D1 and D2 respectively were examined by the government chemist and the liquids inside each of the containers were found to contain 2-chlorobenzalmalononitrile, which is a noxious chemical.

Criminal Record

12.  Both defendants have a clear record in Hong Kong.  They are unlawful entrants to Hong Kong.

Mitigation

D1

13.  D1 was born in Mainland and he is now aged 45.  He was educated up to primary school level.  He used to live with his parents before the arrest in the Mainland.  He says he earned RMB 600 as a farmer and that he had all along been leading a law-abiding and simple life as a farmer.

14.  Defence counsel submitted that D1 pleaded guilty to all the charges, saving court’s time and resources, and this also supports his genuine remorse for what he has done, and he promises this court not to reoffend.  It was said that since his arrest he was incarcerated, he would learn new skills and knowledge on language and carpentry through the courses available in prison so that he could turn a new leaf upon his release.  Defence counsel urged this court to give the shortest possible sentence for D1 so that he could go back to his hometown to take care of his elderly mother. 

15.  For Charge 1, defence counsel urged this court to adopt the sentencing guideline in the case of R v Chan Yui Han, CACC 36/1988, where the sentencing starting point of domestic premises burglary for a fresh offender of full age is 3 years’ imprisonment. 

16.  For Charge 7, he urged the court to adopt the sentencing guideline in R v So Man King & Ors [1989] 1 HKLR 142, that an immediate sentence of 15 months’ imprisonment should be used as the basic guideline for an unlawful remaining in Hong Kong for a fresh offender on a guilty plea. 

17.  He also submitted that the law was well-settled that the sentence for burglary should run consecutive to the sentence for unlawfully remaining in Hong Kong as held by the Court of Appeal in the case of HKSAR v Kei San Man & Another, CACC 246/1999. 

18.  As for the charges of 2, 4 and 5, defence counsel submitted that for these charges there is no sentencing tariff. 

19.  For Charge 2, defence counsel submitted that the maximum penalty is 6 months’ imprisonment.  He accepted that the struggle and resistance displayed by D1 on Charge 2 is a blatant disregard of the law.  But he said that that D1 now knows he is stupid in resisting police officers at the material times and he urged this court to be lenient on D1. 

20.  For Charge 4, it was submitted that D1 and D2 went equipped for stealing together with an unknown person, they were found to be in possession of a crowbar, gloves, balaclavas, torches in a public place during the small hours on the day of the offence for use in a commission or in the course of burglary or theft. 

21.  Defence counsel referred this court to the case of R v Tsang Wing Ming, CACC 315/1989, where the defendant acted alone and was found wearing gloves with screwdriver and torch, was sentenced to 2 years and 6 months’ imprisonment for going equipped for stealing, and 3 months’ imprisonment for resisting a police officer in the execution of his duty.

22.  He submitted further that the facts of the present case on Charge 4 can be distinguished from the Tsang Wing Ming case because in that case the defendant was a professional burglar, but not in our case as D1 is a man of clear record.  Defence counsel for D1 acknowledges, however, that D1 had at the time of the offence in possession of more items for use in burglary or theft than that in the case of Tsang Wing Ming.  Nevertheless, he submitted that a starting point of lower than 2 years 6 months on Charge 4 is appropriate in this case in view of D1’s clear record.

23.  He also referred this court to the case of HKSAR v Li Ho Yin, CACC 240/2012, where the Court of Appeal dismissed the applicant’s appeal against sentence.  The district judge in that case adopted 2 years and 6 months as the sentence starting point for the charge of going equipped for stealing. Defence counsel also said that the appellant in the Li Ho Yin case is again a professional burglar and he urged the court to impose a sentencing starting point of 12 months’ imprisonment for Charge 4.

24.  For Charge 5, defence counsel submitted that the arms in question is what we call a pepper spray canister.  He referred this court to the case of HKSAR v Chau Lap Pui, CACC 358/2006, where on a similar charge, on appeal, the defendant was sentenced to 4 months’ imprisonment after a guilty plea.  Defence counsel urged this court to adopt the same sentencing starting point for this charge. 

25.  Defence counsel also asked this court to consider the totality principle and impose partly consecutive, partly concurrent sentence on D1 for the charges committed on 18 September 2021 to reflect D1’s overall criminality in the case. 

D2

26.  Defence counsel for D2 submitted that D2 pleaded guilty to all the charges and is therefore entitled to full one-third sentencing discount for these charges.  He also submitted that D2 smuggled to Hong Kong with D1 and another person and that D2 has a clear record in Hong Kong. 

27.  For Charge 3, defence counsel submitted that the 2 police officers only suffered minor injuries and these injuries might be caused because of the struggle.  He urged this court to adopt a sentencing starting point of 3 months for this charge.

28.  As for Charge 4, he submitted that the articles involved were ordinary everyday tools and not sophisticated tools, there was no detailed planning and no specific target for the crime. 

29.  For Charge 6, he again referred this court to the case of Chau Lap Pui and he said in the present case there is no evidence that the spray was to be used for illicit purpose.  He urged this court to adopt a sentencing starting point of 6 months’ imprisonment for this charge.

30.  For Charge 8, defence counsel conceded that the sentence of 15 months’ imprisonment should be imposed on a guilty plea. 

31.  He also asked this court to consider the totality principle. 

Discussion

32.  Before sentencing, this court has considered all submissions by defence counsel, including the legal authorities in the area. 

Charge 1

33.  According to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years. 

34.  The premises in question is a domestic premises.  As cited by defence counsel for D1, the Court of Appeal in the case of Chan Yui Han, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age for burglary in domestic premises.  It is also subject to adjustment upon any aggravating or mitigating factors.

35.  For this offence, although defence counsel for D1 submitted D1 acted alone, the CCTV captured two persons and one window grille was removed and the window was prised with a hard object.  This supports the fact that tools were used in the commission of the offence.  In fact, D1 in the video-recorded interview admitted using a screwdriver.  The main door to the premises previously locked was found also unlocked. 

36.  The fact that D1 has a clear record in Hong Kong bears little weight as he was an unlawful entrant to Hong Kong.

37.  This court noted that no property was actually stolen, although the damage to the window grille caused the victim $5,000 as repair fee.  It is also noted that the defendant committed the offence in the evening when people are expected to be inside the premises.  As a matter of fact, PW10 and her 2 children were inside the premises at the time of the offence. 

38.  The fact that D1 committed the offence together with another is an aggravating feature in sentencing.  The appropriate sentencing starting point, in my view, would be 3 years and 3 months’ imprisonment. 

39.  D1 has pleaded guilty and is therefore entitled to full one-third sentencing discount.  He is therefore sentenced to 2 years and 2 months’ imprisonment for this charge.

Charge 2

40.  On conviction upon indictment of this offence, a person is liable to a fine at level 2 and to imprisonment for 6 months. 

41.  Having regard to the circumstances and the manner under which the offence was committed by D1, the nature and extent of the injuries to the police officer, this court considers appropriate sentencing starting point is 3 months’ imprisonment. 

42.  D1 is again entitled to full one-third sentencing discount by reason of his guilty plea and therefore he is sentenced to 2 months’ imprisonment for this charge. 

Charge 3

43.  Similarly, considering the circumstances and manner under which D2 committed this offence, the nature and extent of injury to the police officers, same sentencing starting point of 3 months’ imprisonment is adopted. 

44.  D2 is similarly sentenced to 2 months’ imprisonment by reason of his guilty plea. 

Charge 4

45.  On conviction upon indictment of this charge, a person is liable to 3 years’ imprisonment. 

46.  Both defendants and another were found in the early hours loitering and peeping at the village houses in San Uk Tsai Tsuen, Sha Tau Kok Road, Fanling. D1 was holding a crowbar in his hand, and D1 and D2 had a crowbar, gloves, torches, balaclavas with them. 

47.  There is no sentencing guideline for this offence.

48.  Having regard to the circumstances under which the defendants were apprehended, the nature and quantity of the equipment carried by the defendants at the time, the Li Ho Yin case, this court finds that when the defendants were apprehended, they were all fully equipped and prepared for burglary for domestic premises but were still in the course of deciding on the target.  This court considers appropriate sentencing starting point is 1 year and 9 months’ imprisonment.  However, 3 persons were involved under this charge.  They also had the balaclavas on them, obviously to hide their identity to evade apprehension, as admitted by D2 in his video-recorded interview.  D1 also said that the same was used for burglary in his video-recorded interview. These are both aggravating features for which the sentencing starting point is enhanced to 2 years and 3 months’ imprisonment. 

49.  By reason of their guilty plea, they are entitled to the full one-third sentencing discount.  Each of D1 and D2 is therefore sentenced to 18 months’ imprisonment for this charge. 

Charges 5 and 6

50.  On conviction upon indictment of this offence, a person is liable to a fine at level 6 and to imprisonment for 14 years. 

51.  Defence counsel for both defendants cited to this court the Chau Lap Pui case where on appeal the defendant who possessed a bottle of pepper spray was sentenced to 4 months’ imprisonment upon his guilty plea.  In that case there was no evidence before the court that the pepper spray was to be used for any illicit purpose. 

52.  On the issue of use of the pepper spray, defence counsel have both submitted on behalf of the defendants that they were to be used for self-defence purpose.  In court, this court has indicated its reservation on accepting such contention and inquired the defendants whether they would like to proceed with a Newton hearing on this issue.  Defence counsel after taking instructions have confirmed to this court that both defendants do not wish to proceed with the Newton hearing, although they knew that this court is not going to accept their contention that they possessed the pepper spray for self-defence. 

53.  In the circumstances of this case, this court finds that the only inference drawn was that the pepper spray would be used in the commission of the intended burglary for subduing the victim if the need should arise.[1]

54.  Having regard to the nature of the pepper spray and the circumstances on which they were found on the defendants, the appropriate sentencing starting point would be 9 months’ imprisonment as in the Wong Hok Hang case. 

55.  D1 and D2 is therefore sentenced to 6 months’ imprisonment for Charge 5 and Charge 6 respectively upon their guilty plea. 

Charges 7 and 8

56.  On conviction upon indictment of this offence, a person is liable to a fine at level 4 and to imprisonment for 3 years. 

57.  It is first settled in the case of So Man King that the sentencing starting guideline for this offence is 15 months’ imprisonment upon a guilty plea.  Accordingly, D1 and D2 is sentenced to 15 months’ imprisonment for Charge 7 and Charge 8 respectively. 

58.  This court now considers the totality principle and the just and proportionate sentence for each of the defendants, having regard to their overall criminality and culpability in the case. 

D1

59.  The burglary offence (Charge 1)  was committed by D1 nearly a month prior to the other offences.  These are separate incidents.  But this is, as in Charge 4, theft-related.  The commission of Charge 5 by D1 is obviously related to Charge 4.  Its commission adds to the culpability of D1.  This court in the circumstances considers that 12 month of the sentence in Charge 4 is to run consecutive to the sentence of Charge 1.  3 months of the sentence in Charge 5 is to run consecutive to the sentence of Charges 1 and 4, the rest to run concurrently.  The sentence of Charge 2 and Charge 7 is to run wholly consecutive to the sentence of Charges 1, 4 and 5. 

60.  Accordingly, D1 is sentenced to a total of 58 months’ imprisonment, which this court considers the just and proportionate sentence for D1, having regard to his overall culpability in the case. 

D2

61.  Likewise, commission of Charge 6 by D2 was related to the commission of Charge 4.  Its commission adds to D2’s culpability.  3 months of the sentence in Charge 6 is to run consecutive to the sentence of Charge 4, the rest to run concurrently.  Commission of Charge 3, though related to the Charge 4 offence, was of a totally different nature.  Sentence of Charge 3 and Charge 8 is to run wholly consecutive to the sentence of Charges 4 and 6. 

62.  D2 is therefore sentenced to a total of 38 months’ imprisonment, which this court considers the just and proportionate sentence to D2’s overall culpability in this case.