A A
B B
DCCC 1290/2010
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 1290 OF 2010 D
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E HKSAR E
v
F F
KOT Lung (D1)
G CHEUNG Wing-ling (D2) G
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H H
Before: Deputy District Judge Dufton
I Date: 31 December 2010 I
Present: Miss Clara Ma, Public Prosecutor, for HKSAR
J Mr Leslie Yeung of Messrs C.L. Chow & Macksion Chan J
assigned by the Director of Legal Aid, for the defendants
K Offences: (1) Burglary(入屋犯法罪) K
(2) & (3) Remaining in Hong Kong without the authority of
L the Director of Immigration after having landed unlawfully in L
Hong Kong (在香港非法入境後未得入境事務處處長授權
M 而留在香港) M
N N
REASONS FOR SENTENCE
O O
1. The defendants plead guilty to one joint charge of burglary of
P domestic premises, contrary to section 11(1)(b) and (4) of the Theft P
Q
Ordinance, Chapter 210 (charge 1); and to charges of remaining in Hong Q
Kong without authority having landed unlawfully, contrary to section
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38(1)(b) of the Immigration Ordinance, Chapter 115 (charges 2 & 3).
S S
2. In summary on the morning of the 4th September this year
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Madam Cheuk left her home in Sha Tau Kok after securing the windows
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2
A A
B B
and doors of the home. When she returned in the evening she found the
C window frame on the ground floor had been prized open and the home C
ransacked. Personal items as particularised in the charge, including
D D
valuable watches and jewellery had been stolen. The total value of the
E
goods stolen was $55,350. E
F F
3. Meanwhile the police were patrolling along Sha Tau Kok Road
G when they intercepted the defendants. The defendants were unable to G
produce any proof of identity and admitted they had come to Hong Kong
H H
illegally from the Mainland by hiding underneath a truck earlier the same
I day. All the stolen items taken from Madam Cheuk’s home were found I
on the defendants. In video interviews both defendants admitted prizing
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open the window and stealing the goods from Madam Cheuk’s home.
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4. In passing sentence I have carefully considered everything said
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on behalf of the defendants by Mr Yeung, including the reason why the
M defendants came to Hong Kong. M
N N
Burglary
O O
5. The correct starting point for a single burglary of domestic
P P
premises committed by a first offender of full age where there are no
Q aggravating or mitigating features is three years imprisonment Q
(see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in
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Attorney General v LO Ching-fai [1996] 2 HKCLR 19). Giving the
S defendants full credit for their pleas of guilty they are both sentenced to S
two years imprisonment on charge 1.
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3
A A
B B
Illegally remaining in Hong Kong
C C
6. In R v SO Man-king [1989] 1 HKLR 142 the Court of Appeal
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held that allowing for a plea of guilty a sentence of fifteen months
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imprisonment should be used as the basic guideline unless there are E
strong humanitarian considerations to depart there from. The Court of
F F
Appeal further held that a court should take into account, by upward
G adjustment, any previous unlawful entry. G
H H
7. I am satisfied there are no strong humanitarian grounds to depart
I from the guidance given in SO Man-king. D1 is sentenced to fifteen I
months imprisonment on charge 2. In the case of D2 this is his sixth
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conviction for illegally remaining. D2 is sentenced to twenty one months
K imprisonment on charge 3. K
L L
Totality
M M
8. Unlawfully remaining is separate and distinct from the burglary
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charge. I order the sentences to be served consecutively to the burglary
O charge (see HKSAR v TONG Fuk-sing [1999] 3 HKLRD 710). I am O
satisfied a total sentence of three years and three months imprisonment
P P
properly reflects D1’s criminal culpability on the two charges and a total
Q sentence of three years and nine months imprisonment properly reflects Q
D2’s criminal culpability.
R R
S S
T (D. J. DUFTON) T
Deputy District Judge
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