HKSAR v. SONG FEI

DCCC 238/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 238 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant appeared before me this morning and pleaded guilty to the following three charges:-

1st Charge

Statement of Offence

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, Cap115.

Particulars of Offence

Song Fei, on the 31st day of December, 2012, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration.

2nd Charge

Statement of Offence

Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Particulars of Offence

Song Fei, on the 31st day of December 2012, in Hong Kong, having entered as a trespasser part of a building known as No 8 Shui Mei Tsuen, Pat Heung, New Territories, stole therein one iPhone, eight bags, two chargers, three coats, cash of $13,280 Hong Kong currency, cash of €400 Euros, cash of 1,300 Thailand Bahts, cash of ¥1,000 Japanese Yens, one Octopus card, one watch, one MacBook one notebook computer, one computer mouse, four memory sticks, one router, one adaptor, one USB wire, one external hard disk and cash of ¥1,006 Renminbi.

3rd Charge

Statement of Offence

Resisting police officers in the execution of their duties, contrary to section 63 of the Police Force Ordinance, Cap 232.

Particulars of Offence

Song Fei, on the 31st day of December, 2012, at the slip road near lamppost No AD6255, Pat Heung, New Territories, in Hong Kong, resisted Sergeant 49516 Chow Wai-yip, Senior Police Constable 47687 Nam Kwok-leung and Police Constable 8117 Hui Yin-choi, police officers of the Hong Kong Police Force acting in the execution of their duties.

The Facts

2.  According to the Summary of Facts which has been admitted by the defendant following his plea, this is a simple and straightforward burglary case of a village house situated in Pat Heung, New Territories. The subject matter of the village house in question is a three-storey house surrounded by four concrete walls of about 1.5 metres in height. At the material time, the village house was resided by two ladies, one Madam Yau, PW1, the owner of the house and also her friend, one Madam Ding, PW2.

3.  On 31 December 2012, PW2 was sleeping in the bedroom at the 1st floor of the house. At about 4:50 am she woke up and heard some sound coming from the dining room on the same floor. She noticed the bedroom door was opened and upon checking, she also found that the door leading to the balcony was opened. Her handbag and also two coats placed in the dining room were missing. She then shouted to PW1 who was sleeping at the time in another room on the 2nd floor. The case was reported by PW1.

4.  Later on, upon checking, both PW1 and PW2 confirmed that the property as named in the particulars of Charge 2 were all missing.

5.  According to the facts, the missing properties were all placed on the dining table of the 1st floor in the dining room as well as the bedrooms where PW1 and PW2 were sleeping.

6.  After the police had received the report, a team of police officers (including PW3, PW4 and PW5), the three police officers named in Charge 3, had conducted a sweeping in the vicinity.  Subsequently at about 5:10 am they spotted the defendant riding on a bicycle suspiciously and therefore he was intercepted. Upon the request of the police to produce his identification document, the defendant replied in Punti that he actually sneaked into Hong Kong.  One of the police officers, PW3 searched the defendant’s rucksack and found a MacBook computer (Exhibit P1).

7.  The defendant was then immediately arrested whereupon he immediately pushed PW3 with both hands.  PW3 lost balance and fell onto the ground as a result.  The defendant fled.  PW3 to PW5 together gave chase and warned the defendant to stop.  The defendant ignored the warning and it was only after a 10 metre chase that the defendant was finally intercepted.  When the defendant was intercepted, he kept struggling and eventually the three police officers and the defendant all fell onto the ground.  It was only after two minutes that PW3 to PW5 eventually managed to subdue the defendant and handcuffed him. 

8.  PW3 to PW5 have all suffered various degrees of injuries during the incident.  They were later sent to the hospital for treatment.  They have suffered injuries ranging from tenderness and abrasion, mainly in their shoulders, palms or fingers.

9.  Later, when the defendant was arrested again, he freely admitted that he had no money to support his family and therefore he came to Hong Kong to steal and he only ran away because he was afraid of arrest and imprisonment and he actually sneaked into Hong Kong by climbing into Sha Tau Kok on 27 December 2012.

10.  A more detailed search was later conducted on the defendant and fortunately for PW1 and 2, all the properties that were missing, Exhibit P1 to P25, were recovered from the defendant.

The Record of the defendant

11.  This is not the first time the defendant was charged with a similar offence.  In fact, the defendant was brought up to courts and was actually sentenced both in 1999 and 2005.  In 1999 he was sentenced to a total of 33 months’ imprisonment for “burglary”, “illegal remaining in Hong Kong” and “resisting arrest”.  In 2005, again he was charged with “illegal remaining in Hong Kong” and “handling stolen goods”, for which he was sentenced to 18 months and 12 months’ imprisonment consecutively.

12.  The defendant is still single but he had co-habited with his girlfriend and they have a 15 months old baby.  He is 37 years old and he only received Primary 5 education.  He was born in Sichuan Province in China. 

13.  According to the mitigation by his lawyer, Mr Wong, before this incident the defendant was working as a construction worker earning a monthly income of ¥3,000. In December 2012 his contractor absconded with the wages and as a result the defendant was owed four months’ salary.  Because the defendant had no money he could not go back home to see the daughter and girlfriend.  He decided to come to Hong Kong to find a job and he subsequently committed the present offence. 

14.  Mr Wong said the defendant was only scared when he committed the offence of “resisting arrest”.  He said that the force used by the defendant during the incident can be described as small and the injuries of the police officers is not serious and it is believed that they have all recovered by now.

15.  All the properties involved in the burglary were recovered.  The defendant said he was very remorseful and he would not come to Hong Kong again.  Mr Wong also said the defendant wished the court to be as lenient as possible and to impose a lower sentence so that he can go back to his daughter and his girlfriend as soon as possible. 

16.  Mr Wong actually had produced to the court, and quite properly, a case of HKSAR v Tong Fuk Sing, CACC 216/1999.  In sentencing, I have referred myself to this case, where the Court of Appeal is dealing with a similar case concerning burglary of a village house and the applicant in that case was also an illegal immigrant who was charged with “illegal remaining”.

17.  For Charge 1 of “illegal remaining”, 15 months is the appropriate sentence for this kind of offence after a plea of guilty and the leading case authority is of course R v So Man King [1989] 1 HKLR 142.  As said, the defendant is not a person of a clear record.  Instead, he had later come to Hong Kong illegally, both in 1999 and 2005, and for which his sentence in respect of “illegal remaining” has already been increased from 15 months to 18 months.  This is the third time that he entered Hong Kong illegally.  He should know full well that the court has a duty to increase his sentence to reflect the gravity of the matter and to deter him from ever considering coming to Hong Kong illegally and especially to commit crime.

18.  The starting point for Charge 1 upon his plea of guilty will therefore be increased to 21 months’ imprisonment.

19.  For Charge 2, it is a “burglary” charge in respect of a domestic premises.  I accept that no violence was used during the course of the burglary and I also accept that all the properties that had been stolen by the defendant from the village house had been recovered and the victims were seemingly not disturbed or alarmed during the course of the burglary.  Be that as it may, this is still a serious burglary.  Although the defendant had a similar burglary record back in 1999, I would not regard him as a repeated offender and I will still adopt the usual tariff for burglary of domestic premises and the starting point is therefore 3 years. 

20.  The defendant pleaded guilty and his sentence would be reduced by one-third to 2 years’ imprisonment.

21.  For the sentences of “resisting the police officers in the execution of their duties”, there are altogether three police officers involved.  All three of them have suffered various degrees of minor injuries in the course of the struggle with the defendant.  Having considered the facts of this charge as well as the mitigation put forward by the defendant’s lawyer, I would regard that 3 months’ imprisonment would be appropriate for this charge.  The defendant has pleaded guilty and similarly he would be entitled to a one-third discount.

22.  The sentence for this charge is therefore 2 months’ imprisonment.

23.  Finally, it is the matter of totality.  In respect of Charges 1 and 2, as quoted in the case of Tong Fuk Sing CACC 216/1999, in page 5 of the judgment, the Court of Appeal had said that:-

“Unless there exists some compelling circumstances, such as strong humanitarian reasons, the sentences for both burglary and the illegal remaining should normally be imposed consecutively to one another.”

24.  The Court of Appeal also quoted its earlier case, HKSAR v Wong Ting Wah CACC 153/1997.  In that case the court had considered the position where pleas of guilty had been entered to a burglary on a house in the New Territories committed by a man who was unlawfully in Hong Kong.  I consider that the position of the defendant in this case is exactly the same as the applicant in that case.  The Court of Appeal has said the following in Wong Ting Wah  (supra):

“The judge properly took 3 years as a starting point and properly gave a one-third reduction for plea, reducing that to 2 years. The sentence of 15 months was also a proper sentence to impose on a charge of unlawful entering. This court has repeatedly said that it is proper that such a sentence be made consecutive. We have observed on a number of occasions in the past that householders, particularly those who reside in the New Territories, are entitled to retire in the evening with a feeling that their house and their property therein is safe from the sort of deprivation that persons such as the applicant are committing. It would be wrong for the courts to exercise leniency in relation to offences of this type. It would be a failure to give what protection the courts can give to residents of Hong Kong. The sentences, in our view, were not too severe and the application is refused.”

25.  Accordingly, it follows that the proper sentence of this defendant in the present case should be one of 21 months in the Charge 1 and 24 months in Charge 2, both sentences to run consecutively making a total of 45 months’ imprisonment. 

26.  Insofar as Charge 3 is concerned, I take into account the sentence that I have passed in respect of Charges 1 and 2, and considering the principle of totality, I will order that 1 month of the sentence on Charge 3 to run concurrent with the total sentence of Charge 1 and Charge 2. In other words, the defendant only needs to serve an additional month for this charge.

27.  The total sentences for these three charges is therefore one of 46 months’ imprisonment.