HKSAR v. WAI TUNG

DCCC 1062/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1062 OF 2009

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Reasons for Sentence

1.  The defendant pleads guilty to two charges of burglary and one charge of illegal remaining in Hong Kong.

2.  On 16 August 2009 shortly before 9 pm the defendant was spotted by marine police officers in Deep Bay swimming towards Shenzhen. When intercepted and searched, the defendant was found carrying a plastic bag containing a number of items, including cameras, mobile telephones, watch, notebook computers, MP3 player, cash and other properties.

3.  When cautioned, the defendant admitted to have swum to enter Hong Kong illegally. He climbed up the drainage pipes of two village houses in Hong Kong, entered the premises through the windows to steal. Details of the stolen properties recovered from the defendant were particularized in charges one and two.

4.  Property owners were subsequently located. They both live in the village houses of Mong Tseng Tsuen (輞井村) of Lau Fau Shan (流浮山). The value of the properties stolen from the 2 premises amounts to roughly HK$24,000.

5.  The defendant, 30 years of age, was born in the mainland. He used to work in a factory in Tung Koon while his parents are farmers living in Guangxi. The defendant has previous records of illegally remaining in Hong Kong in 2003 and in 2005. He had 3 previous convictions for burglary and 1 conviction for possession of instrument fit for unlawful purposes. He was discharged from the Hong Kong prison in January 2009 after serving a term of 3 years and 4 months for the convictions for 2 counts of burglary in 2006.

6.  It was said on behalf of the defendant in mitigation that he entered Hong Kong to steal to pay for his dental expenses.

7.  The usual sentence for the burglary of a residential premises is a term of 3 years imprisonment after trial for a first offender (see Chan Yiu Man Cr App No. 36/88; Fong Chun Wai CACC-335/2002). A recidivist is expected to receive a longer term to mete out a deterrent effect (see HUI Chi Tong CACC-414/2007).

8.  The defendant has 3 previous records of burglary. The jail term he has served does not seem to have any deterrent effect on him. The appropriate starting point to adopt should be a term of 3 ½ years imprisonment for each of the 2 burglary offences.

9.  The conventional sentence for illegal remaining is a term of 15 months imprisonment for first offender on a plea of guilty being entered. Repeated offenders are expected to have an escalated sentence. (see Hau Hoi Tung CACC-39/2002). The norm for sentence of illegal remaining is the imposition of consecutive terms of imprisonment (see Tong Fuk Sing [1999] 3 HKLR 710; Tong Tsui Shing CACC-409/2002)

10.  I adopt the 3 ½ years as the starting point for his burglary offences. Giving the defendant due credit for his plea of guilty indicating remorse, I accord him 1/3 discount and impose a term of 2 years and 4 months imprisonment for each of the 2 charges of burglary. Concurrent terms ought not be imposed for several offences committed at different times (see AG v Lui Kam Chi [1993] 1 HKC 215). Since both offences of burglary were committed close in time, I allow the terms for his 1^st and 2^nd charge to be served concurrently.

11.  For the 3^rd charge of illegal remaining, the defendant is a repeated offender. This is his 3^rd conviction for illegal remaining. I adopt the sentence of 21 months imprisonment in accordance with previous authorities. Take totality into consideration, I order 3 months of the 3^rd charge to be served concurrently with the 1^st and 2^nd charge, leaving the balance of 18 months to be served consecutively. The total duration is a period of 3 years and 10 months.