HKSAR v. YU YIHAN ALSO KNOWN AS YU YEEHON AND OTHERS

DCCC 343/2022

[2023] HKDC 532

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 343 OF 2022

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REASONS FOR SENTENCE

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1.  All three defendants pleaded guilty to one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap. 210 (Charge 1).  Each of them pleaded guilty to 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 (Charges 4-6).  Each of the second and third defendants pleaded not guilty to the offence of going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap. 210 (Charges 2-3).  Upon application by the prosecution, Charges 2-3 are to be left on court file, and not to be proceeded with without the court’s leave.  

Facts

2.  At about 3:45 p.m. on 2 October 2021, Ms. Ng Lai Chun and her children left their home at the Front Portion, 1^st Floor, 133 Tai Nan Street, Mong Kok (“the Premises”).  Before they left, Ms. Ng ensured that the metal gate and wooden door of the Premises had been locked securely.

3.  At about 8:40 p.m. on the same day, when Ms. Ng returned home with her family, they found the metal gate and wooden door prized open, the locks damaged, and the door left ajar.  Two bedrooms had been ransacked.

4.  Ms. Ng found the following properties missing (“the Stolen Properties”):

(1)  cash of HK$15,000;

(2)  a silver necklace with heart-shaped pendant;

(3)  a blue butterfly-shaped brooch;

(4)  a golden bracelet;

(5)  a red box, containing items (6)-(8)  below;

(6)  a key to a safe;

(7)  a silver ring;

(8)  seven coins (six 1997 edition coins and a 5-cent coin);

(9)  a golden necklace;

(10)  a silvery bracelet;

(11)  a pair of earrings; and

(12)  a golden ring.

5.  The total value of the Stolen Properties is around HK$22,000.

6.  On 5 October 2021, police officers intercepted the third defendant for investigation.  At that time, he had a backpack with him.  Upon inquiry, the third defendant revealed that he landed in Hong Kong illegally (Charge 4).  Upon search, the third defendant was in possession of an octopus card but no identity documents.  He was arrested.

7.  In subsequent cautioned interviews, the third defendant admitted that he entered Hong Kong illegally.  He came to Hong Kong to earn money.  A man in Shenzhen asked him to carry the backpack to North Point for someone.  He was given HK$600 as a reward.

8.  On 7 October 2021, police officers saw the first and second defendants leaving Yan Hong Mansion, Mong Kok, following another man.  They therefore intercepted the two defendants for inquiry.

9.  Upon search, the first defendant was in possession of a card of a guesthouse and an octopus card.

10.  Upon search of the second defendant, a key, an octopus card and some identity documents were found.  Upon inquiry, the second defendant revealed that he landed in Hong Kong illegally (Charge 6). 

11.  The two defendants were arrested.  They were brought to Room 6 of a guesthouse (“the Guesthouse”)  on 5/F in Yan Hong Mansion.

12.  In Room 6, the police found, amongst other things, the following items:

(1)  a brown bag containing the first defendant’s identity documents, some clothes, some cash and Stolen Properties (2)-(4);

(2)  a black bag; and

(3)  a black backpack containing the third defendant’s identity documents, some cash and some clothes.

13.  In subsequent cautioned interviews, the first defendant admitted that he had landed in Hong Kong illegally (Charge 5).  He came to Hong Kong by boat from Shenzhen in late September.  He came to know the second defendant on the boat. He came to Hong Kong to work.  He picked up the Stolen Properties (2)-(4)  at 1/F of the Guesthouse.

14.  In subsequent cautioned interviews, the second defendant admitted that he took a fishing boat from Sha Tau Kok to Hong Kong on 30 September 2021.  On the boat, he acquainted with the first and third defendants.  He came to Hong Kong to find jobs to earn a higher wage but had yet to find any job. 

15.  Subsequent investigation revealed that CCTV of a shop near the building in which the Premises was situated captured the three defendants appearing in the vicinity between 3:46 p.m. and 3:56 p.m. on 2 October 2021.  The three defendants were captured wearing the same clothes that had been seized by the police, and the second and third defendants were carrying the black bag and black backpack respectively, both of which were seized from Room 6 of the Guesthouse. 

16.  The second and third defendants were captured entering the building in which the Premises was situated at about 3:55 p.m. and they left about a minute thereafter.  After leaving the building, the second and third defendants joined the first defendant and they left together.

17.  Further cautioned interviews were conducted with the defendants on 8 November 2021.

18.  Under caution, the first defendant admitted the brown bag belonged to him and he picked up Stolen Properties (2)-(4)  between the 3^rd and 4^th of October 2021 outside a shoe shop in Mong Kok and then placed them in the brown bag. 

19.  Under caution, the third defendant stated that he could not recall where he was, who he was with, what he was doing, and whether he had been to the Premises at the material time.  He admitted he had placed a black backpack in a guesthouse in Mong Kok.

20.  The octopus cards found on the three defendants respectively were all used to take the same bus at the same time at about 4:24 p.m. on 2 October 2021.

21.  For Charge 1, at the material time, the three defendants, as a joint enterprise, having entered as trespassers of the Premises, which was part of a building, stole therein the Stolen Properties.

22.  For Charges 4-6, at all material times, the first to third defendants respectively, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration.

First defendant’s mitigation

23.  The first defendant is aged 43, married with three children.  Prior to the arrest, he worked as a tailor in the Mainland, earning around RMB 4,000 to 5,000 per month.  He also has to take care of his elderly mother.  He has a clear record in Hong Kong.

24.  As a result of his arrest and detention, his wife had to take up work in Shenzhen in order to support the family, his two youngest children had to be sent to be cared for by his mother-in-law’s family, and his eldest son was left to care for the elderly mother while also studying.

25.  Notwithstanding the first defendant’s belated plea to Charge 1, this Court was urged to grant him the maximum possible discount. 

Second defendant’s mitigation

26.  The second defendant is aged 52.  His wife left the family some years ago.  Prior to the arrest, the second defendant lived with his daughter and his elderly mother.  He worked as a carpenter in the Mainland, earning RMB6,000 per month.  He has a clear record in Hong Kong.

Third defendant’s mitigation

27.  The third defendant is aged 42, a divorcee with 2 daughters.  He has to take care of his elderly mother.  Prior to the arrest, he worked as a farmer and casual worker in construction sites in the Mainland, earning about RMB 2,500 per month.  He committed the offences due to financial pressure.  He has a clear record in Hong Kong.

28.  All counsel for the three defendants submitted in mitigation that apart from the fact that Charge 1 was committed by 3 persons, there was no other aggravating feature in the commission of the offence.  Some of the Stolen Properties with total value of around HK$1,100 were recovered.  They also urged this Court to consider the totality principle when sentencing.

Sentence

Charge 1 (burglary)

29.  The Court of Appeal has laid down sentencing guideline for the offence of burglary.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

30.  The starting point can be adjusted upward if there are aggravating circumstances such as (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature; and (6)  the offender commits multiple offences (see HKSAR v Cheng Wai Kai, CACC 338-339/2007).

31.  All defendants agreed the aggravating feature of Charge 1 is the commission of the offence by 3 persons.  Although the first defendant did not go up to the Premises, his presence in the vicinity clearly indicates that he was part of the joint enterprise and some of the Stolen Properties were in his possession.  In the circumstances, I consider the usual starting point of 36 months should be enhanced by 3 months to reflect the aggravating feature of joint enterprise.

32.  The first defendant only indicated his intention to plead guilty after the case has been set down for trial.  In the circumstance, he is only entitled to a 25% discount on the sentence.  Apart from the guilty plea, there is no other mitigating factor justifying further reduction of the sentence. Therefore, the sentence for Charge 1 in respect of the first defendant is reduced to 29 months’ imprisonment.

33.  For the second and third defendants, both of them indicated their intention to plead guilty before the case has been set down for trial.  Each of them is entitled to the usual 1/3 discount.  Apart from the guilty plea, there is no other mitigating factor justifying further reduction of the sentence. Therefore, in respect of each of the second and third defendants, the sentence for Charge 1 is reduced to 26 months’ imprisonment. 

Charges 4-6 (unlawful remaining)

34.  In relation to the offence of unlawful remaining, it is well settled that a sentence of 15 months’ imprisonment after a guilty plea is the appropriate sentence.  It is also well settled that the sentence for burglary should run consecutively to the sentence for unlawful remaining (see HKSAR v Kei San Man & Another, CACC 246/1999 and HKSAR v Lau Pang [2004] 3 HKLRD 565).

35.  In view of the above and given the defendants’ plea, for each of Charges 4-6, the sentence to be imposed after plea is 15 months’ imprisonment. 

36.  Having considered the totality principle and the circumstances of each defendant, I am satisfied that 5 months of the sentence for the unlawful remaining charge can run concurrently with the sentence for the burglary charge.  The sentence for each defendant is as follows. 

First defendant:

Charge 1 – 29 months’ imprisonment

Charge 5 – 15 months’ imprisonment, 10 months to run consecutively to Charge 1

Total sentence – 39 months’ imprisonment

Second defendant:

Charge 1 – 26 months’ imprisonment

Charge 6 – 15 months’ imprisonment, 10 months to run consecutively to Charge 1

Total sentence – 36 months’ imprisonment

Third defendant:

Charge 1 – 26 months’ imprisonment

Charge 4 – 15 months’ imprisonment, 10 months to run consecutively to Charge 1

Total sentence – 36 months’ imprisonment