HKSAR v. CHEUNG TZS KWAI

DCCC 1130/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1130 OF 2012

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Reasons for Sentence

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1.  Defendant has pleaded guilty today to nine charges, the first eight charges - (1) to (8) - are burglary offences contract to Section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The defendant has also pleaded guilty to Charge 10 on the charge sheet, which is 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.

2.  Despite the multitude of offences the facts are straightforward.  Between 24 May 2012 and 6 June 2012, the defendant committed eight domestic burglaries all in the Pat Heung area of the New Territories.  All occupants of these domestic premises were out at the time when the defendant and a wanted person, according to the defendant, broke in and stole valuables.  That included cash, jewellery, mobile phones as well as food and drink.

3.  The defendant was arrested acting suspiciously in the same area on 7 June and was, in fact, caught red handed with many stolen items from the many burglaries in his possession.  There was a wanted person who was with the defendant at the time but he managed to escape from the police.  Many of the items were, in fact recovered.

4.  The defendant made a full and frank admission to the police admitting all eight burglaries.  He also admitted to the police that he had entered Hong Kong illegally, swimming over with a friend.  He explained that he had come to find work, I presume to earn some money, but having failed, resorted to stealing food and other valuables.

5.  The defendant is a 40 year old male with little formal education.  He is single and has explained that he indebted to a friend who lent him money to fund a duck farm business.  The business unfortunately failed and the money must be repaid which is why he felt he had no choice but to come back to Hong Kong illegally and try and find a way to earn money to repay this debt.  I say “come back to Hong Kong illegally” because he has many previous convictions in Hong Kong.  He has been before the courts on five occasions since 1994.  His last conviction was in 2007.  Amongst his record he has previous convictions for burglaries, robbery and theft as well as five counts of remaining in Hong Kong illegally. 

6.  The defendant’s best mitigation today is his plea of guilty.  Offences of this nature, be it burglary or remaining illegally in Hong Kong have guidelines this court will follow.  Normally a burglary of a domestic premise where there is no aggravating or mitigating factors will attract a starting point of 3 years’ imprisonment.  I can find, in this case, no particular aggravating or mitigating factors.  The single charge of illegally remaining in Hong Kong will attract, after plea for a 1st offence, a 15 month term of imprisonment following the authority of R v So Man King, [1989] 1 HKLR, 142.  There is also ample authority from the Court of Appeal that sentences for illegally remaining in Hong Kong should run consecutively to any other offences committed by the same defendant.

7.  I have considered the defendant’s plea, previous convictions, the facts of each charge and the mitigation put forward.  I have also considered the fact that there were eight counts of burglary and it would not be appropriate to make all these charges concurrent.  The sentences must reflect the multitude of offences even though similar with the totality principle in mind.  I have also taken into account the fact that charges 4, 5 and 6 were committed on the same day.  

8.  Defendant, please stand up.  Therefore, after careful consideration I will make for each charge 1 to 8, a starting point of 3 years - I find a starting point of 3 years appropriate.  The defendant is entitled to a discount of 1 year for his plea of guilty.  So therefore, for Charges 1 to 8 the defendant is sentenced to two years’ imprisonment. 

9.  However, for Charge 2, I will make 2 months of this 2 years consecutive to Charge 1.  For Charge 3 I make 2 months of the 2 year sentence consecutive to Charge 1.  For Charge 4 I also make 2 months of the 2 year sentence consecutive to Charge 1.  For Charges 5 and 6 I will make wholly concurrent to Charge 1.  For Charges 7, I make 2 months of the 2 year sentence consecutive to charge 1.  For Charge 8 I also make 2 months of the 2 year sentence consecutive to Charge 1.  The balance of the sentences will be served concurrently.  Where Charges 1 to 8 is concerned that would mean a total sentence of 2 years and 10 months. 

10.  Where the 10th Charge is concerned according to the established authority and the fact the defendant has committed this offence on a number of occasions, I sentence the defendant to 18 months’ imprisonment for Charge 10. 

11.  I am aware that if I make the 18 months wholly consecutive to the other charges the sentence will be substantial.  After careful consideration, I intend to order six months of this 18 months to be served concurrently to Charge 1 and the balance consecutively.  Accordingly the defendant is sentenced to a total sentence of 3 years and 10 months.