HKSAR v. TSUI WAH FUNG AND ANOTHER

DCCC 239/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 239 OF 2012

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Reasons for Sentence

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1.  D1 and D2 are jointly charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, the first charge on the indictment, which they have each admitted. D1 and D2 each face one count of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212, charges 2 and 3 on the indictment. D1 has admitted charge 2 whilst D2 has denied charge 3. D1 has also admitted one count of 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. Cap 115, charge 4 on the indictment. The Prosecution asked that charge 3 against D2 be left on file, and I directed that it be left on file, and was not to be proceeded with without leave from the Court.

2.  Facts admitted by the defendants disclose that a security guard on duty at about 9.45 pm on 22 January 2012 at the entrance of a construction site located at the ground floor of Block 2, near the MTR Che Kung Temple Station, Ma On Shan Line, Shatin saw via CCTV footage two males walking around inside the meter room of the construction site.  As he knew that no one should be working on the construction site at that time, he made a report to the police.  At around 9.55 pm, police officers arrived at the construction site.  They saw D1 climbing out from the construction site underneath a wire fence while D2 was climbing out over the same wire fence.  After they had climbed out, they both fled in different directions.  Police officers went up to intercept the two defendants. 

3.  PC 5719 and PC 1982 were the police officers who tried to intercept D1 – they disclosed their police identities and asked him to stop running.  D1 was wearing white gloves on both hands and holding a 6 inch long cutter in his left hand at the time.  D1 pointed the cutter, with its blade out, at them and shouted at the police officers not to come closer or he would stab them.  PC 5719 progressed towards D1 with a shield but D1 moved closer to PC 1982 and attempted to hit his chest with his right fist.  PC 1982 tried to dodge with his right hand and D1’s fist hit PC 1982’s right fingers.  PC 5719 rushed the shield towards D1, D1 lost his balance and fell.  He was then subdued.  Upon body search, an electronic box was found from his front left trousers pocket.  Under caution when asked how he got the electronic box, D1 said he had just stolen it from the meter room of the construction site.  D1 was asked what the use of the cutter was and he said it was intended to be used to cut things and to steal the wires from the construction site.  He further said under caution that he just wanted to earn some money before the new year and asked for a chance.  D1 also admitted that he did not have a Hong Kong identity card.  An unknown person had offered him a job and he followed that person to take a boat to Hong Kong from Zhuhai the night before.  He said D2 had taken him to the construction site to steal therein.  It was subsequently confirmed that the electronic box had been installed in the meter room of the construction site on 21 January 2012. PC 1982’s middle and ring fingers were swollen and painful.

4.  PC 5699 and PC 5630 disclosed their police identities to D2 and asked him to stop running.  D2 ignored them and fled.  The police officers gave chase, repeatedly asking D2 to stop.  After a short chase, PC 5630 went up and put his left hand on D2’s shoulders from behind.  D2 immediately pulled away PC 5630’s hand with his both hands, turned around and pushed PC 5630 to the ground.  With the assistance of PC 5699, D2 was subsequently subdued.  D2 was wearing a pair of white gloves on both hands at the time.  Under caution, D2 denied stealing anything or assaulting the police officer.  

5.  The meter room at the construction site was inspected and prize marks on the wooden door of the meter room were found, and a crowbar was found on the floor therein.

6.  Counsel on behalf of each defendant submitted letters in mitigation written by each defendant.  He submitted that each defendant was extremely remorseful and sought leniency.  This was not a large-scale or well planned burglary, nor was there much damage caused at the site.

D1

7.  D1 is aged 28 years and has attained primary education. He lives with his parents, his wife and their five year old son in China.  His mother was found to be suffering from breast cancer in September 2010.  He lost his job because he had to care for her.  His savings have all been used up and he had also borrowed all he could.  His son needed additional school fees which he did not have.  A friend introduced him to come to Hong Kong illegally and to work in a construction site – he came and only after he got here did he realise that construction sites would be closed during Chinese New Year.  He has a clear record.  He asks for leniency.

8.  Upon his arrest, D1 made a full confession to the police.  His pleas today also reflect his remorse.  Save for his pleas, there is really little mitigation of weight before me.

D2

9.  D2 is aged 35 years and has attained primary education.  He lives with his aged parents and 3 daughters, who are all students.  He and his wife are divorced.  He needed to pay additional school fees for his daughters, and thought to come to Hong Kong to earn some quick money.  He too expressed his remorse and sought leniency.  He has a clear record.  Save for his plea, there is really little mitigation of weight.   

10.  I have carefully considered all that has been submitted in mitigation by counsel on behalf of the defendants as well as the contents of their letters.

11.  The proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors for an adult offender of clear record is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004.  I can see no reason to depart from this.

12.  Having considered all that had been urged upon me, in my view the appropriate starting point is one of 2 1/2 years’ imprisonment on charge 1 for both defendants.  There are no aggravating features whatsoever, nor are there are any notable or special mitigating features.  Each is entitled to the usual one-third discount for his plea and is sentenced to 20 months’ imprisonment on charge 1.

13.  Assaults on police officers in the lawful execution of their duties will not be tolerated by the courts of Hong Kong.  Having said that, the assault here was not the worst of its kind.  Although D1 was holding a cutter with its blade extended and pointing it at the police officers, he used his fist to hit the police officer, not the cutter, which is not an offensive weapon per se in any event.  The police officer did not sustain serious injuries, albeit he was granted 4 days sick leave.

14.  In respect of charge 2, I take as a starting point 3 months’ imprisonment, discount this by one-third to reflect D1’s plea, and he is sentenced to 2 months’ imprisonment on this charge.

15.  D1 has also admitted one count of illegally remaining in Hong Kong, charge 4 on the indictment.  The customary sentence for illegally remaining in Hong Kong is a sentence of 15 months’ imprisonment which already takes account of a plea of guilty, unless there are humanitarian considerations to warrant departing from that sentence.  Here I do not see any.  Accordingly, D1 is sentenced to 15 months’ imprisonment on charge 4, which should properly be ordered to run consecutively to the sentence on the other charges as the offences are separate and distinct offences and warrant consecutive sentences.  But I do bear in mind the totality principle of sentence.

16.  In respect of D1, I order that the sentence on charge 2 be consecutive to that of charge 1, and 6 months of the sentence on charge 4 be concurrent with that of charges 1 and 2, and 9 months be consecutive, that is a total of 31 months’ imprisonment.

17.  D2 is sentenced to 20 months’ imprisonment on charge 1.