HKSAR v. ZHOU YOUPING AND ANOTHER

DCCC812/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 812 OF 2010

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Reasons for Sentence

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1.  D1 was charged with two offences to which he pleaded guilty:

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

(2)    Wilfully obstructing a police officer in the due execution of his duty, under section 36(b) of the Offences Against the Person Ordinance, Cap.212.

2.  D2 was charged with and pleaded guilty to an offence of handling stolen goods, under section 24 of the Theft Ordinance.

The facts

3.  The facts of the case can be summarised as follows.

4.  PW1 and PW2 were residing at Room A, 5th Floor, King Moon Heights, 31 Tit Shu Street at Tai Kok Tsui, (“the premises”).

5.  On 19 May 2010, between 0200 hours and 0430 hours, the premises were burgled while PW1 and PW2 were sleeping inside the bedroom therein.  They then reported the case to the police.

6.  At about 0430 hours, D1 and D2 boarded a taxi driven by PW8 at the junction of Anchor Street and Tit Shu Street.  When the said taxi arrived at the junction of Dundas Street and Tung On Street about 0500 hours, it was stopped at a police roadblock.  At that time, D1 and D2 were sitting at the backseat of the taxi.  They were seen placing their hands on a black bag, which was placed in between them.

7.  D1 refused to be searched by PW3 (PC8926) repeatedly, even under the police warning that he might be arrested for obstructing a police officer in the due execution of his duty.

8.  D2 told the police officer that he owned the said black bag and that an unknown person, Ah Hung, gave it to him for safekeeping.  D2 initially disallowed the black bag to be searched by the police, but eventually he surrendered it for search.  Upon search, certain stolen properties were found in the black bag.  D2 was then arrested and cautioned.

9.  D1 became hysterical.  He banged on the taxi and made a dent on it.  PW3 tried to control him but was unsuccessful.  D1 pushed and waved his arms against PW3.  Even with the use of pepper spray, D1 was still out of control.  D1 suddenly fled.  After a hot pursuit, he was subdued and arrested.  A torch, a screwdriver and some Hong Kong currency were found on D1.  All the other stolen items particularised in Charges 1 and 3 were found inside the said black bag.  PW1 and PW2 confirmed that those stolen properties were their belongings.

Background of the defendants

10.  D1, aged 33, a divorcee.  He has four previous convictions in Hong Kong, three of which were dishonesty related.  For financial reasons, he committed the present offence of burglary in Hong Kong.

11.  D2 is aged 28.  He has a clear record.

12.  Both Charges 1 and 3 carry a maximum sentence of 14 years’ imprisonment. Charge 2 is an excepted offence.  It carries a maximum sentence of 2 years’ imprisonment.

Burglary

13.  As far as domestic burglary is concerned, the Court of Appeal in R v Chan Yui Man, Cr App No 36/1988, and AG v Lui Kam Chi, CAAR 1/1993, had indicated that the correct starting point is 3 years’ imprisonment for a first offender of full age.

14.  As such, this court will adopt a starting point of 3 years for the burglary charge against D1. Such term would be reduced by one-third to 2 years' imprisonment.

Wilfully obstructing a police officer in the due execution of his duty

15.  In the course of search by the police officer, D1 was very uncooperative, despite numerous police warnings.  Not only he became hysterical and violent, he dented the taxi.  He put up a vigorous struggle.  Even pepper spray was used, D1 was out of control completely.  He then fled and escaped, but was apprehended eventually.

16.  As indicted by the Court of First Instance in HKSAR v Cheung Wai Leung, HCMA12/2007, that

“there is no sentencing guidelines for this type of offence. What has to be looked at is the seriousness of the obstruction, the injury to the police officers and also, most importantly, the court has to consider that a deterrent sentence is necessary in view of the fact that the police officers have to be protected in carrying out their duties.”

17.  This court considered a starting point of 6 months is appropriate in this case.  Upon a guilty plea, such sentence would be reduced by one-third to 4 months’s imprisonment.

Concurrent or Consecutive sentences?

18.  Charges 1 and 2 are separate, unrelated and distinct offences, and could not be said to have committed in the course of a single transaction.  This court has considered the totality principle, together with the overall culpability and criminality of D1.  It is, therefore, appropriate to have the sentences run partly consecutive to each other.

19.  As such, it is ordered that 3 months of the sentence in Charge 2 are to run consecutively to the sentence in Charge 1.  The remainder is to run concurrently.

20.  The total term of imprisonment to be served by D1 shall be 27 months’s imprisonment.

Handling stolen goods

21.  The maximum sentence for this offence is 14 years’ imprisonment.

22.  Unlike the English sentencing guidelines issued by the Court of Appeal in R v Bernard Webbe and Ors [2002] 1 Cr App R (S) 82, there is no sentencing tariff for offence of this nature in Hong Kong.

23.  The circumstances of offence differ enormously, the normal range of sentences for handling stolen goods would be 2 to 4 years’ imprisonment.  See R v Chan Wing Kwan and Chiang Yen Ching, CAAC 121/1985.

24.  However, some of the aggravating factors identified in Webbe’s case were present in this case.

(1) the geographical and temporal closeness of the handler to the primary offence. The burglary was committed between 2 am to 4.30 am at an apartment in Tit Shu Street. The taxi driver picked the two defendants up at the vicinity at 4.30 am. This court accepts that D2 was not the burglar, but he was closely connected with the original burglary; and

(2) the goods which D2 received were proceeds of a domestic burglary.

25.  However, the Court of Appeal in Chan Wing Kwan and Chiang Yen Ching’s case stated that    

“In normal circumstances, the handler of stolen goods can normally expect a lesser sentence than those who were convicted of the substantive offence of burglary of the goods, which were subsequently handled.”

26.  Having considered all the circumstances of the case, including the background of D2 and the case, the mitigation advanced and his plea of guilty, this court will still adopt a starting point of 24 months on Charge 3.  Such term will be reduced by one-third for his guilty plea to 16 months.

27.  It is ordered that D2 has to serve a term of 16 months’ imprisonment.