HKSAR v. MEI YUAN AND ANOTHER

DCCC 202/2022

[2023] HKDC 687

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 202 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 and D2 are jointly charged with one count of burglary (Charge 1), and they are each charged with one count of remaining in Hong Kong without the authority of the director of immigration. (Charges 2 and 3).

2.  D1 pleaded guilty to both Charges 1 and 2, D2 only pleaded guilty to Charge 3 but he was acquitted after trial on Charge 1.

FACTS OF THE CASE

Charge 1

3.  At 1000 hours on 19 June 2021, the Victim (Ms Cheng)  left her house, she returned at 2145 and found her house was burgled where her belongings were scattered on the floor of her bedroom, and the window of her bedroom was pried open, the following items were stolen,

(a)  Around $25,000 cash;

(b)  Two gold necklaces with pendant;

(c)  One gold wrist chain with pendant;

(d)  Eight pairs of earrings;

(e)  One ring;

(f)  Some ID photos;

(g)  Two bracelets (one of which is Cartier branded known as E1);

(h)  Three wristwatches (two of which that came with a box, one of the three wristwatches is Longines branded known as E2);

(i)  One handbag(E3);

(j)  11 pieces of earrings (among 10 of the 11 pieces, four pieces known as E4, one other piece known as E5, two other pieces known as E6, two other pieces known as E7 and one other piece known as E8)

4.  Upon investigation, the identity and the location of the suspects were surfaced, on the strength of a search warrant, police raided a flat located at 5/F Un Chau Street, (“the Flat”)  where D1, D2 and 7 other men were arrested.

5.  Upon search, stolen items E1 to E8 were found inside the Flat.

6.  D1 admits entering the Victim’s house as a trespasser on 19 June 2021 and stealing the items as set out at paragraph 3.

Charges 2 & 3

7.  In the record of interview of D1, D1 claimed he had no idea as to how he left China and how he got to Hong Kong. he arrived at the Flat on 17 June 2021 and never left until he was arrested.

8.  In the record of interview of D2, D2 claimed he entered Hong Kong by boat from Shenzhen on 18 June 2021.

9.  There were no valid immigration entry records for D1 and D2.

10.  At all material times, D1 and D2 having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of immigration.

MITIGATION AND SENTENCE

D1

11.  D1 is now 31 years old, a divorced person with 2 children.  He was born in China.  He has a clear record in Hong Kong.  Defence Counsel has rightly pointed out, there are sentencing guidelines in respect of both charges, having considered the background of D1 and the facts of the case, I see no reason to depart from those guidelines.

12.  However, Counsel has made, in my view a valid point.  On 24 April, just 3 days before the Trial, D1 was served with an additional evidence, (I was told, it was a video clip showing the surroundings of the burgled premises taken by D1 using his mobile phone)  and it was never in the unused materials, instructions were sought immediately and legal advice were given to D1 which resulted in his change of plea.

13.  The said video had been extracted in March 2022, but the existence of this video was never disclosed to D1 before, Counsel submits, the video was certainly a material consideration on D1’s plea.  Had the video been given to D1 earlier, he might have made a more timely plea.  It is to be noted that, this video was seized by the police upon D1’s arrest, this piece of evidence was well within D1’s knowledge and it was a matter for him to make known to his Counsel and to enter a plea of guilty at the earliest opportunity if he so wished, but I have not overlooked the fact that it is still the duty of the prosecution to make known to D1 all materials for and against him so that proper legal advice could be given to him.

14.  I have also noticed in the summary of facts, there were other tools and jewelries found, but no further evidence or suggestion was tendered it was a burglaries syndicate or related to D1, I am not going to enhance the starting point in this regard.

Charge 1

15.  For the reasons above, I will adopt a starting point of 3 years for the burglary of a domestic premises, D1 only indicated his plea of guilty a day before the trial, normally, he should only be entitled to a 20% discount, as discussed above, I agree the video was material, it certainly had an impact on the legal advice given to D1 and possibly a more timely plea of guilty, bearing that in mind, I will allow 25% discount on his plea, for Charge 1, D1 is sentenced to 27 months’ imprisonment.

Charge 2

16.  I will adopt a starting point of 22.5 months, D1 indicated his plea of guilty in the mention hearing, he is entitled to a full 1/3 discount, D1 is sentenced to 15 months’ imprisonment.

17.  Lastly, taking into account the totality principal, I will order 10 months of Charge 2 to run consecutively to Charge 1, making it a total of 37 months’ imprisonment.

D2

18.  D2 is now 28 years old, he has a clear record in Hong Kong.  He is single, lives in China.  He works on construction sites on a casual basis, earning about RMB3,000. 

19.  I do not find his personal background amounts to any mitigating factor, nor do I see any reason to depart from the usual guideline.

Charge 3

20.  I will adopt a starting point of 22.5 months, D2 indicated his plea of guilty in the mention hearing, he is entitled to a full 1/3 discount, D2 is sentenced to 15 months’ imprisonment.