HKSAR v. CHAN HO TIN AND ANOTHER

DCCC374/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 374 OF 2009

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Reasons for Sentence

1.  The defendants have both been convicted on their plea of one charge of burglary committed on 6 March this year in the Sha Tau Kok area, and each of them have been convicted on their plea of one charge of unlawfully remaining in Hong Kong.

2.  The defendants admit that they sneaked into Hong Kong by clinging onto the underside of a truck on 6 March, and later on that same day, they committed the burglary offence.  I note that there was nobody in the house at that time that they burgled it.  The owner had left the house unattended but secured on 28 February, and when he returned on 8 March, discovered that a window had been prised open on the ground floor, there were signs of ransacking and he discovered the property as listed in the charge was missing.

3.  Two uniformed police officers who were patrolling in the Sha Tau Kok area had in the meantime on 6 March discovered the defendants hiding in some bushes.  They were unable to provide any valid travel or identification documents.  They were arrested and, under caution, both admitted the offences in question.  All the property which was stolen has been recovered.  The 450 pound sterling was divided more or less equally between them; the clothes the 2nd defendant was wearing were clothes that had been stolen during the burglary; and the very small amounts of other foreign currencies, really so tiny it is hardly worth mentioning, were also found on them, in addition to the mobile phone.

4.  Mr Wong has said everything on behalf of the defendants in mitigation that could be said.  It is not an unfamiliar story in relation to illegal entrants from the mainland.  Both come from very poor backgrounds by Hong Kong standards, both from rural areas in northern China, and they were both important breadwinners in their families.  They both went to Shenzhen in their own time in the hope of finding work that would enable them to earn a little more to send back to their families.

5.  I accept for present purposes that the reason they sneaked into Hong Kong was in the hope of finding employment in Hong Kong where they rightly had been led to believe wages were considerably higher than in the mainland.  The reason they committed the burglary offence on the same day that they entered Hong Kong, I accept, was because they were hungry, hoping they would find some food, and also their clothes had been “wrecked”, as Mr Wong put it, during their surreptitious concealment under the truck coming into Hong Kong and they wanted to replace some of their wrecked clothing.

6.  However, they then rather spoilt that particular ground of mitigation for themselves by stealing, in addition to some clothing, the 450 pound sterling which they found in the house, and also a mobile phone.

7.  I accept that the theft of that foreign currency and the mobile phone were purely opportunistic.  They saw them there and could not resist the temptation but, nevertheless, the fact that they stole that property lifts it out of the category of cases where illegal entrants have burgled simply to look for food because they were hungry. 

8.  They must also appreciate that while I am not unsympathetic with the fact of the poor and by Hong Kong standards economically deprived backgrounds which they come from, the courts in Hong Kong cannot give more than very little weight to this fact.  Otherwise, it would tend to encourage a lot more people to come illegally from the mainland to Hong Kong, seeking to better themselves, which would be an unacceptable consequence.

9.  The 1st defendant is 23 years of age; 2nd defendant, 26 years of age, and 2nd defendant has a clear record.  The 1st defendant has one previous conviction for burglary and one for unlawfully remaining in Hong Kong, both of which he was convicted of in July 2006. 

10.  The well-established starting point for burglary of domestic premises, as these were, is 3 years’ imprisonment after trial.  On all the facts of the case, I can see no reason to depart from the guideline.  If it had been simply food and/or a few items of clothing that had been stolen, I would have adopted a lower starting point, however bearing in mind the nature of the further items stolen, I feel that it would not be justified to depart from the guidelines.

11.  On the 1st charge therefore I adopt a starting point of 3 years’ imprisonment, and in return for their pleas of guilty and co-operation with the authorities, I afford them the normal one-third discount which reduces the starting point to 2 years’ imprisonment.  That is the sentence I impose upon each of them on the 1st charge.

12.  On the charge of unlawfully remaining in Hong Kong, it is well-established that the “tariff” is 15 months’ imprisonment after a plea of guilty.  On the 2nd charge, I impose a sentence of 15 months’ imprisonment on the 1st defendant and order that 11 months of it is to be concurrent with and 4 months consecutive to the sentence on the 1st charge.

13.  I was quite impressed with the letter written by the 2nd defendant and I accept it shows that he is truly remorseful for what he did and the trouble that he has caused the Hong Kong authorities.  On the 3rd charge, I impose a sentence of 15 months’ imprisonment on him as well.  I order it to be wholly concurrent in his case with the sentence on the 1st charge, bearing in mind also that he is a man of clear record.

14.  So the 1st defendant faces a sentence of 2 years 4 months’ imprisonment altogether, and the 2nd defendant a sentence of 2 years altogether.