HKSAR v. FUNG YUEN FUNG

DCCC 826/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 826 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded to guilty three charges today, one of burglary, one of possession of an offensive weapon in a public place and one of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully.

2.  In the first offence, the burglary occurred at a Fairwood Restaurant in Tai Po between 4 to 5 o’clock on 13 July this year, 2015. The restaurant had CCTV recording and the defendant was seen on that to enter the restaurant at about 4.30 in the morning.  He remained there till about 5.20.  He could also be seen to be tampering with something before leaving. 

3.  Later that morning, staff at the restaurant found that two drawers of the restaurant cash register had been damaged by prying, also some door locks had been damaged.  The total repair costs had been about $4,100.

4.  The defendant was arrested at about 6.52 in the evening of 13 July.  He admitted having entered Hong Kong illegally when he was asked for proof of identity.

5.  Also, a search found on him a 25-centimetre-long spring‑operated folding knife and two screwdrivers.  The defendant had said that the knife had been brought with him for self-defence from wild animals while he walked through the woods in Sha Tau Kok, and the screwdrivers had in fact been taken from the inside of the restaurant in Tai Po which he had entered intending to steal money.

6.  The defendant’s antecedents showed he is a young man.  He is aged 20 and has a clear record.  He is from the mainlands of China and was educated up to Form 3 in China.  He is single, lives with his family and is from Shenzhen.  He had worked as a decoration worker.

7.  As far as the sentence is concerned, mitigation is as follows that: he has pleaded guilty; he is still a young man, he is only 20; he has a clear record in Hong Kong; that in the burglary no money was taken; and he was arrested on the same day that the incident took place.  Following his arrest he cooperated with police and made full admissions fairly shortly afterwards.  He has always indicated he would plead guilty and has cooperated.

8.  As far as the sentence is concerned, it is clear that the appropriate sentences on both the 1st and the 3rd charge are set out in guideline sentences.

9.  On the 1st charge of burglary, this is a burglary of a non-residential premises and a first offender can expect, on a plea of guilty, a starting point of 30 months’ imprisonment (or 2½ years’ imprisonment) which leaves after deduction of one‑third for his plea of guilty a sentence of 20 months’ imprisonment.

10.  On the 3rd charge, the guideline sentence on a plea of guilty for a first offence of remaining in Hong Kong, is one of 15 months’ imprisonment.

11.  For the 2nd charge there is no guideline sentence.  Sentences for possession of an offensive weapon in a public place, even on a first offence, are normally sentences of immediate imprisonment. 

12.  The defendant says in his mitigation that the weapon itself was for self-defence against wild animals - although it is difficult to think of any wild animal in Hong Kong which the knife would have been effective against. 

13.  Having regard to the nature of the weapon itself, what I will do is take a starting point of 9 months’ imprisonment.  I will reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

14.  So the sentences are as follows:  On charge 1, 20 months’ imprisonment; Charge 2, 6 months’ imprisonment; and on Charge 3, 15 months’ imprisonment.  It would appear from the facts that the defendant came to Hong Kong to commit the burglary, so the sentences on Charges 1 and 3 can be served consecutively to one another subject to the question of overall totality.

15.  Furthermore, the second offence, that of possession of the offensive weapon, also represents a separate and identifiable offence which could be served consecutively to the other offences.  To simply add up the sentences would, of course, lead to an incorrect sentence having regard to the requirement of a correct overall totality.  I need to determine that figure and then adjust the sentences by way of making them to be served consecutively or partly consecutively and concurrently.

16.  What I shall do is take an overall total sentence of 33 months’ imprisonment.  I shall achieve that as follows: Charge 2 will be served consecutively to Charge 1.  As far as Charge 3 is concerned, 7 months of it will be served consecutively to Charges 1 and 2, and the balance concurrently, leading to an overall sentence of 33 months’ imprisonment.