HKSAR v. TO FAI

DCCC1268/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1268 OF 2009

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Reasons for Sentence

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1.  The defendant To Fai appeared before me this morning and pleaded guilty to two charges. The 1st Charge is Burglary contrary to section 11(1)(a)(4) of the Theft Ordinance, Cap. 210 and the 2nd Charge is 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.

2.  The facts of both charges are simple enough. According to the amended summary of facts which has been agreed by the defendant, he entered Hong Kong illegally on 20 October 2009 by hiding himself underneath a container truck which departed from Shenzhen. He dropped off in the Kwai Chung area and found himself in Block 9 of Wonderland Villas before dawn. According to the cautioned statement, he told the police frankly that he later climbed up the water pipes outside Block 9 of Wonderland Villas and rested on the canopy outside the flat waiting for a chance to steal. Later, when it was quiet, and he thought that nobody was inside the flat, he then entered the flat through the toilet window. As the matter unfolded actually the resident of the flat, one Mr Lee, was actually alone inside his flat. He was, at the time, sleeping alone in his bedroom. At around 3.30pm Mr Lee woke up and went to the kitchen and much to his surprise, he discovered the presence of the defendant.

3.  The confrontation was followed by a brief struggle and, in the course of the struggle, the defendant also scratched the neck of Mr Lee leaving a scratch mark of some 2 to 3 inches in length. In the end Mr Lee managed to subdue the defendant and kept him inside the flat. The matter was later reported to the police and the defendant was arrested. Nothing was found missing from the flat and the defendant was unable to produce any valid travel document to police upon inquiry.

4.  The defendant was no stranger to the Hong Kong Court. He is now aged 27 but back in 2002 and 2004 he appeared in court twice for the same pair of charges, namely, burglary and illegal remaining for which he was sentenced to 36 months as well as 39 months respectively. He is still single and he has only primary school education.

5.  In mitigation I was informed that he worked in Shenzhen as a car-cleaning worker earning about RMB800 to RMB900 each month. Through his lawyer, the defendant expressed his plain remorse and he said that he will not come to Hong Kong again to commit further offences.

6.  Burglary is of course a serious offence. It is well settled that the sentence for domestic burglary is 3 years’ imprisonment as the appropriate starting point. In the present case there are, of course, further aggravating factors which call for an increase of the starting point. In the case of HKSAR v Cheng Wai Kai CACC338 & 339/2007 the Court of Appeal have mentioned that one of the reasons for increasing the sentence will be that the offender has a previous record, especially a similar previous record, and also if the offender is a professional burglar and not just an opportunist.

7.  Also in this year, in HKSAR v Fan Kit Hung CACC62/2009, the Court of Appeal have supplemented that if, during the course of burglary, there is personal injuries or property damage it was one of another factor which should be taken into account when increasing the sentence.

8.  The defendant has been convicted of a similar offence twice so this is already the third time that he committed a similar offence. According to the facts it is clear that the reason why he entered into Hong Kong illegally was to commit burglary. It was not open to him to say that he was trying to sneak in to the flat to steal food out of basic instinct of human need to struggle for life. Clearly he could not and did not rely on this kind of humanitarian ground in the present circumstances.

9.  In my view with the presence of these factors, the 3 years sentence should be added another 6 months for the burglary charges making the total before any discount for plead was 42 months. Because the defendant has pleaded guilty, which is the only mitigating factor, for the burglary charge, Charge 1, the proper sentence should therefore be 28 months.

10.  For the 2nd Charge of illegal remaining, according to the case of So Man King [1989] 1 HKLR 142 the appropriate starting point for this kind of offence even upon a plea of guilty is one of 15 months’ imprisonment. Again, the defendant had been convicted twice before for the same offence. I note that on the second time the court has not increased the sentence. I think it is time that the court should increase the sentence on this charge in order to reflect the gravity of the matter and to send a message that for repeated offender the court will always increase the sentence to deter the offender. For this charge the court is going to impose a sentence of one of 18 months’ imprisonment.

11.  Lastly as to the matter of totality. It was well settled that the sentence for burglary should usually be consecutive to the sentence for immigration offences of this kind (see HKSAR v Kei San Man & Another CACC246/1999). Therefore I just follow the authority and order that the sentences for the two charges to run consecutively making a total sentence of 46 months.