A A
DCCC415/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 415 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Lau Wai
F F
----------------------
G G
Before: Deputy District Judge Joseph To
Date: 11 August 2011 at 10.03 am
H Present: Miss Chan Sze-yan, PP of the Department of Justice, H
for HKSAR
Mr Cheung Chi-fai, Victor, instructed by Messrs Y K
I Lau & Chu, assigned by the Director of Legal Aid, for I
the Defendant
J Offence: (1) Handling stolen goods (處理贓物罪) J
(2) Remaining in Hong Kong unlawfully (在香港非法入境後未
得入境事務處處長授權而留在香港)
K K
(3) Assaulting a police officer (襲擊執行職責的警務人員)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. The defendant has pleaded guilty to the following
O O
three charges, namely,
1) Handling stolen goods, preferred against him under
P P
section 24 of the Theft Ordinance, Cap.210;
Q 2) Unlawful remaining in Hong Kong, laid against him Q
pursuant to section 38(1)(b) of the Immigration Ordinance,
R Cap.115, and R
3) Assaulting a police officer in execution of duty,
S S
brought against him under section 63 of the Police Force
Ordinance, Cap.232, and section 17 of the Hong Kong
T T
Auxiliary Police Force Ordinance, Cap.233.
U U
CRT32/11.8.2011/SR 1 DCCC415/2011/Sentence
V V
A A
2. The facts of the case to which the defendant agrees
are as follows. In the course of the late evening of 8 January
B B
and the early morning of 9 January 2011, a car theft and a
C burglary occurred in Tseung Kwan O. C
D 3. By car theft, the court means theft from the vehicle. D
The car involved had its window smashed, and a DVD, a pair of
E E
sports shoes, and a USB were taken away.
F 4. The burgled premises were for non-residential use. A F
window of the premises was broken. A notebook computer, a
G G
digital video camera together with its case and memory card, a
brief case, a jacket, and three packs of instant noodles were
H H
stolen.
I I
5. On the early evening of 9 January, an auxiliary police
J officer saw the defendant at a 7-Eleven, located also in Tseung J
Kwan O, looking very nervous. The officer approached the
K K
defendant for enquiry.
L L
6. The defendant could not produce to the officer any
proof of his identity, and attempted to flee. The officer warned
M M
the defendant not to resist; otherwise, he would be arrested.
N The defendant ignored him, and continued to resist and to N
attempt to escape. The officer declared arrest on the defendant,
O and the defendant punched the officer in his left forearm with O
force, causing it to hit against the wall, resulting in an
P abrasion on the officer’s left middle finger (Charge 3). Other P
police officers subdued the defendant.
Q Q
7. The defendant was found to be wearing the pair of
R R
sports shoes stolen from the car and a jacket which was found
S missing from the burgled premises. The briefcase he carried came S
from the burgled premises and it contained the DVD and the USB
T stolen from the car, and the notebook computer, the digital T
camera and its case and memory card, later identified to be
U U
property taken from the burgled premises (Charge 1).
CRT32/11.8.2011/SR 2 DCCC415/2011/Sentence
V V
A A
8. Immigration records showed that the defendant has
B B
landed in Hong Kong unlawfully and has remained in Hong Kong
without authority (Charge 2).
C C
D 9. The court finds the defendant guilty of the three D
charges and, by consent, makes order that the fourth charge
E should be left on court file, marked “Not to be proceeded with E
without the leave of the court.” The defendant has three
F previous criminal records, one of which is similar to Charge 2, F
while the others were for offences of robbery and burglary for
G G
which he was sentenced to four years and two years,
respectively.
H H
I 10. In mitigation, the defence puts forward the following I
matters for the court’s consideration. The defendant is 34 years
J old. He is single and has no siblings. He lives by himself in J
Shenzhen, his parents having passed away. Before he came to Hong
K K
Kong, he used to work as a security guard.
L L
Discussion
M 11. In sentencing this defendant, the court ignores the M
fact that a burglary has occurred.
N N
12. Handling stolen goods is a more serious offence than
O O
theft, particularly in cases where the stolen goods carry
significant re-sale value. It has been recognised for some time
P P
that but for the existence of re-sale channels or an established
Q black market, thefts involving valuable or luxurious items might Q
not even occur.
R R
13. In the instant case, the stolen goods included a DVD,
S S
a notebook computer, and a video camera, all of which had
significant re-sale value. The two thefts occurred in the same
T T
locality, and the stolen goods were handed over to the
U defendant, an illegal immigrant, within a short time. This U
suggests at least some degree of organisation between the
CRT32/11.8.2011/SR 3 DCCC415/2011/Sentence
V V
A A
stealing of the items and their unlawful handling by the
defendant.
B B
C 14. In all the circumstances, an appropriate starting C
point for Charge 1 is one of two and a half years’ imprisonment.
D D
15. There is a clear sentencing guideline in respect of
E Charge 2. A repeated offender should expect a sentence up to 18 E
months’ imprisonment. Nothing in the facts of this case would
F justify a departure from that guideline. F
G 16. Resisting a police officer in the course of his duty G
is a serious offence, as it represents a direct challenge to the
H H
rule of law in Hong Kong. The officer in this case has suffered
minor injuries. In all the circumstances, an appropriate
I I
starting point should be one of three months’ imprisonment.
J J
17. Apart from his guilty pleas, nothing in the
K
defendant’s personal and family circumstances would warrant any K
further discount.
L L
Conclusion
M 18. In the result the court adopts a starting point of 30 M
months’ imprisonment for Charge 1, which is reduced by one-third
N N
for the defendant’s guilty plea to one of 20 months’
imprisonment. In respect of Charge 2, the defendant is to serve
O O
a period of imprisonment of 18 months. The starting point for
P Charge 3 is three months’ imprisonment which is, likewise, P
reduced by one third to two months.
Q Q
19. In principle, when an illegal immigrant commits a
R R
crime in Hong Kong, the sentence for the offence should run
wholly consecutively to the sentence for unlawful remaining.
S S
There is nothing before the court to justify a departure from
T that sentencing principle. T
U U
CRT32/11.8.2011/SR 4 DCCC415/2011/Sentence
V V
A A
20. The court has considered the totality principle and
orders that one month of the sentence for Charge 3 should be
B B
served consecutively to the 20 months for Charge 1, making a
C total sentence for the two charges one of 21 months’ C
imprisonment.
D D
21. The sentence of 21 months’ imprisonment for charges 1
E and 3 should run consecutively to the 18 months’ imprisonment E
for Charge 2, making a final sentence of 39 months’ for the
F three charges. F
G Order G
22. The defendant is sentenced to three years and three
H months’ imprisonment. H
I I
J J
K K
(Joseph To)
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT32/11.8.2011/SR 5 DCCC415/2011/Sentence
V V
A A
DCCC415/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 415 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Lau Wai
F F
----------------------
G G
Before: Deputy District Judge Joseph To
Date: 11 August 2011 at 10.03 am
H Present: Miss Chan Sze-yan, PP of the Department of Justice, H
for HKSAR
Mr Cheung Chi-fai, Victor, instructed by Messrs Y K
I Lau & Chu, assigned by the Director of Legal Aid, for I
the Defendant
J Offence: (1) Handling stolen goods (處理贓物罪) J
(2) Remaining in Hong Kong unlawfully (在香港非法入境後未
得入境事務處處長授權而留在香港)
K K
(3) Assaulting a police officer (襲擊執行職責的警務人員)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. The defendant has pleaded guilty to the following
O O
three charges, namely,
1) Handling stolen goods, preferred against him under
P P
section 24 of the Theft Ordinance, Cap.210;
Q 2) Unlawful remaining in Hong Kong, laid against him Q
pursuant to section 38(1)(b) of the Immigration Ordinance,
R Cap.115, and R
3) Assaulting a police officer in execution of duty,
S S
brought against him under section 63 of the Police Force
Ordinance, Cap.232, and section 17 of the Hong Kong
T T
Auxiliary Police Force Ordinance, Cap.233.
U U
CRT32/11.8.2011/SR 1 DCCC415/2011/Sentence
V V
A A
2. The facts of the case to which the defendant agrees
are as follows. In the course of the late evening of 8 January
B B
and the early morning of 9 January 2011, a car theft and a
C burglary occurred in Tseung Kwan O. C
D 3. By car theft, the court means theft from the vehicle. D
The car involved had its window smashed, and a DVD, a pair of
E E
sports shoes, and a USB were taken away.
F 4. The burgled premises were for non-residential use. A F
window of the premises was broken. A notebook computer, a
G G
digital video camera together with its case and memory card, a
brief case, a jacket, and three packs of instant noodles were
H H
stolen.
I I
5. On the early evening of 9 January, an auxiliary police
J officer saw the defendant at a 7-Eleven, located also in Tseung J
Kwan O, looking very nervous. The officer approached the
K K
defendant for enquiry.
L L
6. The defendant could not produce to the officer any
proof of his identity, and attempted to flee. The officer warned
M M
the defendant not to resist; otherwise, he would be arrested.
N The defendant ignored him, and continued to resist and to N
attempt to escape. The officer declared arrest on the defendant,
O and the defendant punched the officer in his left forearm with O
force, causing it to hit against the wall, resulting in an
P abrasion on the officer’s left middle finger (Charge 3). Other P
police officers subdued the defendant.
Q Q
7. The defendant was found to be wearing the pair of
R R
sports shoes stolen from the car and a jacket which was found
S missing from the burgled premises. The briefcase he carried came S
from the burgled premises and it contained the DVD and the USB
T stolen from the car, and the notebook computer, the digital T
camera and its case and memory card, later identified to be
U U
property taken from the burgled premises (Charge 1).
CRT32/11.8.2011/SR 2 DCCC415/2011/Sentence
V V
A A
8. Immigration records showed that the defendant has
B B
landed in Hong Kong unlawfully and has remained in Hong Kong
without authority (Charge 2).
C C
D 9. The court finds the defendant guilty of the three D
charges and, by consent, makes order that the fourth charge
E should be left on court file, marked “Not to be proceeded with E
without the leave of the court.” The defendant has three
F previous criminal records, one of which is similar to Charge 2, F
while the others were for offences of robbery and burglary for
G G
which he was sentenced to four years and two years,
respectively.
H H
I 10. In mitigation, the defence puts forward the following I
matters for the court’s consideration. The defendant is 34 years
J old. He is single and has no siblings. He lives by himself in J
Shenzhen, his parents having passed away. Before he came to Hong
K K
Kong, he used to work as a security guard.
L L
Discussion
M 11. In sentencing this defendant, the court ignores the M
fact that a burglary has occurred.
N N
12. Handling stolen goods is a more serious offence than
O O
theft, particularly in cases where the stolen goods carry
significant re-sale value. It has been recognised for some time
P P
that but for the existence of re-sale channels or an established
Q black market, thefts involving valuable or luxurious items might Q
not even occur.
R R
13. In the instant case, the stolen goods included a DVD,
S S
a notebook computer, and a video camera, all of which had
significant re-sale value. The two thefts occurred in the same
T T
locality, and the stolen goods were handed over to the
U defendant, an illegal immigrant, within a short time. This U
suggests at least some degree of organisation between the
CRT32/11.8.2011/SR 3 DCCC415/2011/Sentence
V V
A A
stealing of the items and their unlawful handling by the
defendant.
B B
C 14. In all the circumstances, an appropriate starting C
point for Charge 1 is one of two and a half years’ imprisonment.
D D
15. There is a clear sentencing guideline in respect of
E Charge 2. A repeated offender should expect a sentence up to 18 E
months’ imprisonment. Nothing in the facts of this case would
F justify a departure from that guideline. F
G 16. Resisting a police officer in the course of his duty G
is a serious offence, as it represents a direct challenge to the
H H
rule of law in Hong Kong. The officer in this case has suffered
minor injuries. In all the circumstances, an appropriate
I I
starting point should be one of three months’ imprisonment.
J J
17. Apart from his guilty pleas, nothing in the
K
defendant’s personal and family circumstances would warrant any K
further discount.
L L
Conclusion
M 18. In the result the court adopts a starting point of 30 M
months’ imprisonment for Charge 1, which is reduced by one-third
N N
for the defendant’s guilty plea to one of 20 months’
imprisonment. In respect of Charge 2, the defendant is to serve
O O
a period of imprisonment of 18 months. The starting point for
P Charge 3 is three months’ imprisonment which is, likewise, P
reduced by one third to two months.
Q Q
19. In principle, when an illegal immigrant commits a
R R
crime in Hong Kong, the sentence for the offence should run
wholly consecutively to the sentence for unlawful remaining.
S S
There is nothing before the court to justify a departure from
T that sentencing principle. T
U U
CRT32/11.8.2011/SR 4 DCCC415/2011/Sentence
V V
A A
20. The court has considered the totality principle and
orders that one month of the sentence for Charge 3 should be
B B
served consecutively to the 20 months for Charge 1, making a
C total sentence for the two charges one of 21 months’ C
imprisonment.
D D
21. The sentence of 21 months’ imprisonment for charges 1
E and 3 should run consecutively to the 18 months’ imprisonment E
for Charge 2, making a final sentence of 39 months’ for the
F three charges. F
G Order G
22. The defendant is sentenced to three years and three
H months’ imprisonment. H
I I
J J
K K
(Joseph To)
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT32/11.8.2011/SR 5 DCCC415/2011/Sentence
V V