HKSAR v. YUEN SAI WA

DCCC 231/2000 & 70/2006 (Consolidated)

[2021] HKDC 606

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 231 OF 2000 & 70 OF 2006

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REASONS FOR SENTENCE

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1.  The defendant, Yuen Sai Wa stands before me convicted on his own pleas of the following 2 charges:-

(1)  A charge of making false report of commission of offence, namely robbery (Charge 2); and

(2)  A charge of failing to surrender to custody without reasonable cause (Charge 6).

2.  The facts, as admitted by the defendant, reveal that he had been employed by Asin Base Limited (hereinafter called “the company”) as a carrier.

3.  At about 3:00 pm on 10 December 1999, Mr Lo hired Mr Yu to help remove some notebook computers.  At about 3:45 pm, Mr Lo led Mr Yu to the company.

4.  On arriving at the entrance to the company, Mr Lo rang the doorbell.  The defendant opened the door and let Mr Lo and Mr Yu in.  Mr Lo told the defendant that Mr Yu was his friend and could be trusted for removing the 27 sets of notebook computers inside the company.

5.  Mr Yu then removed all the notebook computers with the trolleys from the company as instructed, without any untoward event, and Mr Lo drove Mr Yu together with the notebook computers to leave the company.

6.  At about 4:40 pm, the defendant went to the office of Mr Yung asking Mr Yung to let him use the telephone to make a report to police.

7.  At about 4:42 pm, the defendant made a report to the police by phone.  Officer Wan of the police received a call from the defendant who claimed that he and together with the other persons had just been robbed by four unknown men of some notebook computers inside the company, and one of the robbers was armed with a knife.

8.  At about 10 pm, the defendant told DSPC19951 that:-

(a)  He and together with the other persons were robbed by four unknown men inside the company at about 4 pm the same day;

(b)  Each of the four robbers were wearing caps and one was armed with a knife;

(c)  He was assaulted by the robbers and was tied up with iron wire and gagged with a towel by them;

(d)  The robbers ransacked the company and took away 27 sets of notebook computers, two trolleys and cash of about HK$100,000.

9.  On 13 December 1999, the defendant was arrested.  The defendant was later charged to the court, he was released on court bail for trial scheduled on 18 May 2000.  The defendant failed to report to the police station on 11 April 2000.  Warrant of Arrest was issued on 19 April 2000, it was executed on 27 November 2020 when the defendant returned to Hong Kong from Mainland China.

10.  Upon caution for “failing to surrender to custody without reasonable cause”, the defendant said he was frightened at the material time so he went back to Mainland China for hiding. He now returns to Hong Kong to face the legal proceedings（“我當時因為好驚所以先返咗大陸呢埋，我依家返嚟香港都係想接受返香港嘅法律程序”）.  Upon subsequent caution, the defendant confirmed his admissions, and further explained that he fled to Mainland China via Sha Tau Kok.  He knew that he breached court order.  After he served his terms in Mainland China, he returned to Hong Kong.

Criminal records and background of the defendant

11.  The defendant is now aged 57 and was divorced since 1994.  He was born in Hong Kong and was educated up to Secondary 5.  Prior to his arrest, he had served his prison time in Mainland China since 2010.  He is still in touch with his mother, his nephew and his younger brother.

12.  The defendant has one previous criminal conviction, namely Attempt robbery in 1996 for which he was sentenced to 4 years and 6 months’ imprisonment.

Mitigation

13.  In mitigation, Mr Lai submitted three mitigating letters to the court. These letters were written by the defendant, his mother and his nephew respectively.  In gist, Mr Lai submitted that the defendant is deeply remorseful for his past acts and asks for leniency.  Mr Lai also submitted a copy of the “certificate of release” for the court’s reference.

14.  Mr Lai also submitted that the defendant understands immediate custodial sentence would be the only option.  After serving a lengthy sentence in Mainland China, he is well prepared to face the legal consequence in Hong Kong and therefore, immediately after his release in Mainland China, he chose to surrender himself by coming back to Hong Kong voluntarily.

15.  Mr Lai stated that the defendant had no knowledge of what charges awaited him at that juncture, yet he would still embrace any sentence the court would pass on him.

16.  Mr Lai also urged the court to consider timely guilty pleas by the defendant and the totality principle when passing the sentence.

Sentencing considerations

17.  The maximum sentence for the commission of the offence under section 64(a) of the Police Force Ordinance, Cap 232 is punishable to a fine at level 1 and to imprisonment for 6 months.

18.  I have taken into account of the nature of the offence and all matter urged on the defendant’s behalf by Mr Lai.  For the 2^nd charge, I can see that much time and resources of the police must have been wasted.

19.  I am of the view that a starting point of 13 weeks’ imprisonment is appropriate.

20.  The defendant failed to attend court on 18 May 2000.  A defendant who absconds can expect to be given a discount of less than one-third when he pleads guilty and that he will be additionally punished for the offence of failing to surrender to court[1].

21.  The usual range of discount afforded to a defendant who has absconded is about 20% to 25%.

22.  The defendant was re-arrested over twenty years later on 27 November 2020 when the defendant returned to Hong Kong from Mainland China.

23.  I am satisfied that a discount of about 20% is appropriate and thereby reducing the sentence to 10 weeks’ imprisonment after rounding up adjustment.  

24.  For the 6^th charge, the sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court.  Generally, the longer the period the longer the sentence.  

25.  Taking into account that the defendant was arrested over twenty years after failing to attend the police station and the court, I am satisfied that a starting point of 9 months’ imprisonment is appropriate.

26.  The fact that the defendant had served a prison term in Mainland China since 22 April 2010 will not affect the culpability of the defendant’s absconding and failing to attend the trial on 18 May 2000.

27.  My view is that even using April 2010 as the cut off point, the length of absconding is long enough for me to justify a starting point of 9 months.

28.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment for the 6^th charge.

Totality

29.  Failing to surrender to court is a wholly distinct and separate offence from the offence of making false report of commission of offence.

30.  In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[2].

31.  A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[3]. I am satisfied that a wholly consecutive sentence is appropriate making a total sentence of 6 months and 10 weeks’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the two charges.   

Sentence

32.  The defendant is convicted and sentenced as follows:-

Charge 2 – 10 weeks’ imprisonment and

Charge 6 – 6 months’ imprisonment consecutive to charge 2.

33.  The total sentence to be served by the defendant is 6 months and 10 weeks’ imprisonment.