HKSAR v. LAU WAI

DCCC415/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 415 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the following three charges, namely,

1) Handling stolen goods, preferred against him under section 24 of the Theft Ordinance, Cap.210;

2) Unlawful remaining in Hong Kong, laid against him pursuant to section 38(1)(b) of the Immigration Ordinance, Cap.115, and

3) Assaulting a police officer in execution of duty, brought against him under section 63 of the Police Force Ordinance, Cap.232, and section 17 of the Hong Kong   Auxiliary Police Force Ordinance, Cap.233.

2.  The facts of the case to which the defendant agrees are as follows. In the course of the late evening of 8 January and the early morning of 9 January 2011, a car theft and a burglary occurred in Tseung Kwan O.

3.  By car theft, the court means theft from the vehicle. The car involved had its window smashed, and a DVD, a pair of sports shoes, and a USB were taken away.

4.  The burgled premises were for non-residential use.  A window of the premises was broken.  A notebook computer, a digital video camera together with its case and memory card, a brief case, a jacket, and three packs of instant noodles were stolen. 

5.  On the early evening of 9 January, an auxiliary police officer saw the defendant at a 7-Eleven, located also in Tseung Kwan O, looking very nervous.  The officer approached the defendant for enquiry.

6.  The defendant could not produce to the officer any proof of his identity, and attempted to flee.  The officer warned the defendant not to resist; otherwise, he would be arrested.  The defendant ignored him, and continued to resist and to attempt to escape.  The officer declared arrest on the defendant, and the defendant punched the officer in his left forearm with force, causing it to hit against the wall, resulting in an abrasion on the officer’s left middle finger (Charge 3).  Other police officers subdued the defendant. 

7.  The defendant was found to be wearing the pair of sports shoes stolen from the car and a jacket which was found missing from the burgled premises.  The briefcase he carried came from the burgled premises and it contained the DVD and the USB stolen from the car, and the notebook computer, the digital camera and its case and memory card, later identified to be property taken from the burgled premises (Charge 1). 

8.  Immigration records showed that the defendant has landed in Hong Kong unlawfully and has remained in Hong Kong without authority (Charge 2).

9.  The court finds the defendant guilty of the three charges and, by consent, makes order that the fourth charge should be left on court file, marked “Not to be proceeded with without the leave of the court.” The defendant has three previous criminal records, one of which is similar to Charge 2, while the others were for offences of robbery and burglary for which he was sentenced to four years and two years, respectively. 

10.  In mitigation, the defence puts forward the following matters for the court’s consideration.  The defendant is 34 years old.  He is single and has no siblings.  He lives by himself in Shenzhen, his parents having passed away.  Before he came to Hong Kong, he used to work as a security guard.

Discussion

11.  In sentencing this defendant, the court ignores the fact that a burglary has occurred. 

12.  Handling stolen goods is a more serious offence than theft, particularly in cases where the stolen goods carry significant re-sale value.  It has been recognised for some time that but for the existence of re-sale channels or an established black market, thefts involving valuable or luxurious items might not even occur.

13.  In the instant case, the stolen goods included a DVD, a notebook computer, and a video camera, all of which had significant re-sale value. The two thefts occurred in the same locality, and the stolen goods were handed over to the defendant, an illegal immigrant, within a short time.  This suggests at least some degree of organisation between the stealing of the items and their unlawful handling by the defendant. 

14.  In all the circumstances, an appropriate starting point for Charge 1 is one of two and a half years’ imprisonment. 

15.  There is a clear sentencing guideline in respect of Charge 2.  A repeated offender should expect a sentence up to 18 months’ imprisonment.  Nothing in the facts of this case would justify a departure from that guideline. 

16.  Resisting a police officer in the course of his duty is a serious offence, as it represents a direct challenge to the rule of law in Hong Kong.  The officer in this case has suffered minor injuries.  In all the circumstances, an appropriate starting point should be one of three months’ imprisonment. 

17.  Apart from his guilty pleas, nothing in the defendant’s personal and family circumstances would warrant any further discount.

Conclusion

18.  In the result the court adopts a starting point of 30 months’ imprisonment for Charge 1, which is reduced by one-third for the defendant’s guilty plea to one of 20 months’ imprisonment.  In respect of Charge 2, the defendant is to serve a period of imprisonment of 18 months.  The starting point for Charge 3 is three months’ imprisonment which is, likewise, reduced by one third to two months. 

19.  In principle, when an illegal immigrant commits a crime in Hong Kong, the sentence for the offence should run wholly consecutively to the sentence for unlawful remaining.  There is nothing before the court to justify a departure from that sentencing principle.  

20.  The court has considered the totality principle and orders that one month of the sentence for Charge 3 should be served consecutively to the 20 months for Charge 1, making a total sentence for the two charges one of 21 months’ imprisonment. 

21.  The sentence of 21 months’ imprisonment for charges 1 and 3 should run consecutively to the 18 months’ imprisonment for Charge 2, making a final sentence of 39 months’ for the three charges. 

Order

22.  The defendant is sentenced to three years and three months’ imprisonment.