DCCC239/2012 HKSAR v. TSUI WAH FUNG AND ANOTHER - LawHero
DCCC239/2012
HKSAR v. TSUI WAH FUNG AND ANOTHER
區域法院（刑事）Deputy District Judge Chainrai10/5/2012
DCCC239/2012
A A
B B
DCCC 239/2012
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 239 OF 2012
E E
F -------------------------- F
HKSAR
G G
v
H TSUI Wah-fung (D1) H
CHEN Tongtian (D2)
I I
--------------------------
J J
Before: Deputy District Judge Chainrai
K K
Date: 11 May 2012
L Present: Miss Claudia Ng, PP, of the Department of Justice, for HKSAR L
Mr Chan Siu Pan, of Ong & Chung, assigned by the Director of
M M
Legal Aid, for the defendants
N N
Offence: (1) Burglary（入屋犯法罪）
O (2) Assaulting a police officer in the due execution of his duty O
（襲擊在正當執行職務的警務人員）
P P
(3) Assaulting a police officer in the execution of his duty（襲
Q 擊執行職責的警務人員） Q
R (4) Remaining in Hong Kong without the authority of the R
Director of Immigration after having landed unlawfully in
S S
Hong Kong （在香港非法入境後未得入境事務處處長
T 授權而留在香港） T
U U
V V
- 2 -
A A
B B
C -------------------------- C
Reasons for Sentence
D D
--------------------------
E E
1. D1 and D2 are jointly charged with one count of burglary,
F F
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, the
G first charge on the indictment, which they have each admitted. D1 and D2 G
each face one count of assaulting a police officer in the due execution of
H H
his duty, contrary to section 36(b) of the Offences against the Person
I Ordinance, Cap 212, charges 2 and 3 on the indictment. D1 has admitted I
charge 2 whilst D2 has denied charge 3. D1 has also admitted one count of
J J
remaining in Hong Kong without the authority of the Director of
K Immigration after having landed unlawfully in Hong Kong, contrary to K
section 38(1)(b) of the Immigration Ordinance. Cap 115, charge 4 on the
L L
indictment. The Prosecution asked that charge 3 against D2 be left on file,
M and I directed that it be left on file, and was not to be proceeded with M
without leave from the Court.
N N
O 2. Facts admitted by the defendants disclose that a security O
guard on duty at about 9.45 pm on 22 January 2012 at the entrance of a
P P
construction site located at the ground floor of Block 2, near the MTR Che
Q Kung Temple Station, Ma On Shan Line, Shatin saw via CCTV footage Q
two males walking around inside the meter room of the construction site.
R R
As he knew that no one should be working on the construction site at that
S time, he made a report to the police. At around 9.55 pm, police officers S
arrived at the construction site. They saw D1 climbing out from the
T T
construction site underneath a wire fence while D2 was climbing out over
U U
V V
- 3 -
A A
B B
the same wire fence. After they had climbed out, they both fled in different
C directions. Police officers went up to intercept the two defendants. C
D D
3. PC 5719 and PC 1982 were the police officers who tried to
E intercept D1 – they disclosed their police identities and asked him to stop E
running. D1 was wearing white gloves on both hands and holding a 6 inch
F F
long cutter in his left hand at the time. D1 pointed the cutter, with its blade
G out, at them and shouted at the police officers not to come closer or he G
would stab them. PC 5719 progressed towards D1 with a shield but D1
H H
moved closer to PC 1982 and attempted to hit his chest with his right fist.
I PC 1982 tried to dodge with his right hand and D1’s fist hit PC 1982’s right I
fingers. PC 5719 rushed the shield towards D1, D1 lost his balance and fell.
J J
He was then subdued. Upon body search, an electronic box was found
K from his front left trousers pocket. Under caution when asked how he got K
the electronic box, D1 said he had just stolen it from the meter room of the
L L
construction site. D1 was asked what the use of the cutter was and he said
M it was intended to be used to cut things and to steal the wires from the M
construction site. He further said under caution that he just wanted to earn
N N
some money before the new year and asked for a chance. D1 also admitted
O that he did not have a Hong Kong identity card. An unknown person had O
offered him a job and he followed that person to take a boat to Hong Kong
P P
from Zhuhai the night before. He said D2 had taken him to the
Q construction site to steal therein. It was subsequently confirmed that the Q
electronic box had been installed in the meter room of the construction site
R R
on 21 January 2012. PC 1982’s middle and ring fingers were swollen and
S painful. S
T T
U U
V V
- 4 -
A A
B B
4. PC 5699 and PC 5630 disclosed their police identities to D2
C and asked him to stop running. D2 ignored them and fled. The police C
officers gave chase, repeatedly asking D2 to stop. After a short chase, PC
D D
5630 went up and put his left hand on D2’s shoulders from behind. D2
E immediately pulled away PC 5630’s hand with his both hands, turned E
around and pushed PC 5630 to the ground. With the assistance of PC 5699,
F F
D2 was subsequently subdued. D2 was wearing a pair of white gloves on
G both hands at the time. Under caution, D2 denied stealing anything or G
assaulting the police officer.
H H
I 5. The meter room at the construction site was inspected and I
prize marks on the wooden door of the meter room were found, and a
J J
crowbar was found on the floor therein.
K K
6. Counsel on behalf of each defendant submitted letters in
L L
mitigation written by each defendant. He submitted that each defendant
M was extremely remorseful and sought leniency. This was not a large-scale M
or well planned burglary, nor was there much damage caused at the site.
N N
O D1 O
P P
7. D1 is aged 28 years and has attained primary education. He
Q lives with his parents, his wife and their five year old son in China. His Q
mother was found to be suffering from breast cancer in September 2010.
R R
He lost his job because he had to care for her. His savings have all been
S used up and he had also borrowed all he could. His son needed additional S
school fees which he did not have. A friend introduced him to come to
T T
Hong Kong illegally and to work in a construction site – he came and only
U U
V V
- 5 -
A A
B B
after he got here did he realise that construction sites would be closed
C during Chinese New Year. He has a clear record. He asks for leniency. C
D D
8. Upon his arrest, D1 made a full confession to the police. His
E pleas today also reflect his remorse. Save for his pleas, there is really little E
mitigation of weight before me.
F F
G D2 G
H H
9. D2 is aged 35 years and has attained primary education. He
I lives with his aged parents and 3 daughters, who are all students. He and I
his wife are divorced. He needed to pay additional school fees for his
J J
daughters, and thought to come to Hong Kong to earn some quick money.
K He too expressed his remorse and sought leniency. He has a clear record. K
Save for his plea, there is really little mitigation of weight.
L L
M 10. I have carefully considered all that has been submitted in M
mitigation by counsel on behalf of the defendants as well as the contents of
N N
their letters.
O O
11. The proper starting point in a case of burglary of
P P
non-domestic premises in the absence of aggravating or mitigating factors
Q for an adult offender of clear record is 2 years and 6 months’ imprisonment: Q
R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang
R R
Hon-yin AR 5/2004. I can see no reason to depart from this.
S S
12. Having considered all that had been urged upon me, in my
T T
view the appropriate starting point is one of 2 1/2 years’ imprisonment on
U U
V V
- 6 -
A A
B B
charge 1 for both defendants. There are no aggravating features
C whatsoever, nor are there are any notable or special mitigating features. C
Each is entitled to the usual one-third discount for his plea and is sentenced
D D
to 20 months’ imprisonment on charge 1.
E E
13. Assaults on police officers in the lawful execution of their
F F
duties will not be tolerated by the courts of Hong Kong. Having said that,
G the assault here was not the worst of its kind. Although D1 was holding a G
cutter with its blade extended and pointing it at the police officers, he used
H H
his fist to hit the police officer, not the cutter, which is not an offensive
I weapon per se in any event. The police officer did not sustain serious I
injuries, albeit he was granted 4 days sick leave.
J J
K 14. In respect of charge 2, I take as a starting point 3 months’ K
imprisonment, discount this by one-third to reflect D1’s plea, and he is
L L
sentenced to 2 months’ imprisonment on this charge.
M M
15. D1 has also admitted one count of illegally remaining in Hong
N N
Kong, charge 4 on the indictment. The customary sentence for illegally
O remaining in Hong Kong is a sentence of 15 months’ imprisonment which O
already takes account of a plea of guilty, unless there are humanitarian
P P
considerations to warrant departing from that sentence. Here I do not see
Q any. Accordingly, D1 is sentenced to 15 months’ imprisonment on charge Q
4, which should properly be ordered to run consecutively to the sentence
R R
on the other charges as the offences are separate and distinct offences and
S warrant consecutive sentences. But I do bear in mind the totality principle S
of sentence.
T T
U U
V V
- 7 -
A A
B B
16. In respect of D1, I order that the sentence on charge 2 be
C consecutive to that of charge 1, and 6 months of the sentence on charge 4 C
be concurrent with that of charges 1 and 2, and 9 months be consecutive,
D D
that is a total of 31 months’ imprisonment.
E E
17. D2 is sentenced to 20 months’ imprisonment on charge 1.
F F
G G
H H
(Bina Chainrai)
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 239/2012
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 239 OF 2012
E E
F -------------------------- F
HKSAR
G G
v
H TSUI Wah-fung (D1) H
CHEN Tongtian (D2)
I I
--------------------------
J J
Before: Deputy District Judge Chainrai
K K
Date: 11 May 2012
L Present: Miss Claudia Ng, PP, of the Department of Justice, for HKSAR L
Mr Chan Siu Pan, of Ong & Chung, assigned by the Director of
M M
Legal Aid, for the defendants
N N
Offence: (1) Burglary（入屋犯法罪）
O (2) Assaulting a police officer in the due execution of his duty O
（襲擊在正當執行職務的警務人員）
P P
(3) Assaulting a police officer in the execution of his duty（襲
Q 擊執行職責的警務人員） Q
R (4) Remaining in Hong Kong without the authority of the R
Director of Immigration after having landed unlawfully in
S S
Hong Kong （在香港非法入境後未得入境事務處處長
T 授權而留在香港） T
U U
V V
- 2 -
A A
B B
C -------------------------- C
Reasons for Sentence
D D
--------------------------
E E
1. D1 and D2 are jointly charged with one count of burglary,
F F
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, the
G first charge on the indictment, which they have each admitted. D1 and D2 G
each face one count of assaulting a police officer in the due execution of
H H
his duty, contrary to section 36(b) of the Offences against the Person
I Ordinance, Cap 212, charges 2 and 3 on the indictment. D1 has admitted I
charge 2 whilst D2 has denied charge 3. D1 has also admitted one count of
J J
remaining in Hong Kong without the authority of the Director of
K Immigration after having landed unlawfully in Hong Kong, contrary to K
section 38(1)(b) of the Immigration Ordinance. Cap 115, charge 4 on the
L L
indictment. The Prosecution asked that charge 3 against D2 be left on file,
M and I directed that it be left on file, and was not to be proceeded with M
without leave from the Court.
N N
O 2. Facts admitted by the defendants disclose that a security O
guard on duty at about 9.45 pm on 22 January 2012 at the entrance of a
P P
construction site located at the ground floor of Block 2, near the MTR Che
Q Kung Temple Station, Ma On Shan Line, Shatin saw via CCTV footage Q
two males walking around inside the meter room of the construction site.
R R
As he knew that no one should be working on the construction site at that
S time, he made a report to the police. At around 9.55 pm, police officers S
arrived at the construction site. They saw D1 climbing out from the
T T
construction site underneath a wire fence while D2 was climbing out over
U U
V V
- 3 -
A A
B B
the same wire fence. After they had climbed out, they both fled in different
C directions. Police officers went up to intercept the two defendants. C
D D
3. PC 5719 and PC 1982 were the police officers who tried to
E intercept D1 – they disclosed their police identities and asked him to stop E
running. D1 was wearing white gloves on both hands and holding a 6 inch
F F
long cutter in his left hand at the time. D1 pointed the cutter, with its blade
G out, at them and shouted at the police officers not to come closer or he G
would stab them. PC 5719 progressed towards D1 with a shield but D1
H H
moved closer to PC 1982 and attempted to hit his chest with his right fist.
I PC 1982 tried to dodge with his right hand and D1’s fist hit PC 1982’s right I
fingers. PC 5719 rushed the shield towards D1, D1 lost his balance and fell.
J J
He was then subdued. Upon body search, an electronic box was found
K from his front left trousers pocket. Under caution when asked how he got K
the electronic box, D1 said he had just stolen it from the meter room of the
L L
construction site. D1 was asked what the use of the cutter was and he said
M it was intended to be used to cut things and to steal the wires from the M
construction site. He further said under caution that he just wanted to earn
N N
some money before the new year and asked for a chance. D1 also admitted
O that he did not have a Hong Kong identity card. An unknown person had O
offered him a job and he followed that person to take a boat to Hong Kong
P P
from Zhuhai the night before. He said D2 had taken him to the
Q construction site to steal therein. It was subsequently confirmed that the Q
electronic box had been installed in the meter room of the construction site
R R
on 21 January 2012. PC 1982’s middle and ring fingers were swollen and
S painful. S
T T
U U
V V
- 4 -
A A
B B
4. PC 5699 and PC 5630 disclosed their police identities to D2
C and asked him to stop running. D2 ignored them and fled. The police C
officers gave chase, repeatedly asking D2 to stop. After a short chase, PC
D D
5630 went up and put his left hand on D2’s shoulders from behind. D2
E immediately pulled away PC 5630’s hand with his both hands, turned E
around and pushed PC 5630 to the ground. With the assistance of PC 5699,
F F
D2 was subsequently subdued. D2 was wearing a pair of white gloves on
G both hands at the time. Under caution, D2 denied stealing anything or G
assaulting the police officer.
H H
I 5. The meter room at the construction site was inspected and I
prize marks on the wooden door of the meter room were found, and a
J J
crowbar was found on the floor therein.
K K
6. Counsel on behalf of each defendant submitted letters in
L L
mitigation written by each defendant. He submitted that each defendant
M was extremely remorseful and sought leniency. This was not a large-scale M
or well planned burglary, nor was there much damage caused at the site.
N N
O D1 O
P P
7. D1 is aged 28 years and has attained primary education. He
Q lives with his parents, his wife and their five year old son in China. His Q
mother was found to be suffering from breast cancer in September 2010.
R R
He lost his job because he had to care for her. His savings have all been
S used up and he had also borrowed all he could. His son needed additional S
school fees which he did not have. A friend introduced him to come to
T T
Hong Kong illegally and to work in a construction site – he came and only
U U
V V
- 5 -
A A
B B
after he got here did he realise that construction sites would be closed
C during Chinese New Year. He has a clear record. He asks for leniency. C
D D
8. Upon his arrest, D1 made a full confession to the police. His
E pleas today also reflect his remorse. Save for his pleas, there is really little E
mitigation of weight before me.
F F
G D2 G
H H
9. D2 is aged 35 years and has attained primary education. He
I lives with his aged parents and 3 daughters, who are all students. He and I
his wife are divorced. He needed to pay additional school fees for his
J J
daughters, and thought to come to Hong Kong to earn some quick money.
K He too expressed his remorse and sought leniency. He has a clear record. K
Save for his plea, there is really little mitigation of weight.
L L
M 10. I have carefully considered all that has been submitted in M
mitigation by counsel on behalf of the defendants as well as the contents of
N N
their letters.
O O
11. The proper starting point in a case of burglary of
P P
non-domestic premises in the absence of aggravating or mitigating factors
Q for an adult offender of clear record is 2 years and 6 months’ imprisonment: Q
R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang
R R
Hon-yin AR 5/2004. I can see no reason to depart from this.
S S
12. Having considered all that had been urged upon me, in my
T T
view the appropriate starting point is one of 2 1/2 years’ imprisonment on
U U
V V
- 6 -
A A
B B
charge 1 for both defendants. There are no aggravating features
C whatsoever, nor are there are any notable or special mitigating features. C
Each is entitled to the usual one-third discount for his plea and is sentenced
D D
to 20 months’ imprisonment on charge 1.
E E
13. Assaults on police officers in the lawful execution of their
F F
duties will not be tolerated by the courts of Hong Kong. Having said that,
G the assault here was not the worst of its kind. Although D1 was holding a G
cutter with its blade extended and pointing it at the police officers, he used
H H
his fist to hit the police officer, not the cutter, which is not an offensive
I weapon per se in any event. The police officer did not sustain serious I
injuries, albeit he was granted 4 days sick leave.
J J
K 14. In respect of charge 2, I take as a starting point 3 months’ K
imprisonment, discount this by one-third to reflect D1’s plea, and he is
L L
sentenced to 2 months’ imprisonment on this charge.
M M
15. D1 has also admitted one count of illegally remaining in Hong
N N
Kong, charge 4 on the indictment. The customary sentence for illegally
O remaining in Hong Kong is a sentence of 15 months’ imprisonment which O
already takes account of a plea of guilty, unless there are humanitarian
P P
considerations to warrant departing from that sentence. Here I do not see
Q any. Accordingly, D1 is sentenced to 15 months’ imprisonment on charge Q
4, which should properly be ordered to run consecutively to the sentence
R R
on the other charges as the offences are separate and distinct offences and
S warrant consecutive sentences. But I do bear in mind the totality principle S
of sentence.
T T
U U
V V
- 7 -
A A
B B
16. In respect of D1, I order that the sentence on charge 2 be
C consecutive to that of charge 1, and 6 months of the sentence on charge 4 C
be concurrent with that of charges 1 and 2, and 9 months be consecutive,
D D
that is a total of 31 months’ imprisonment.
E E
17. D2 is sentenced to 20 months’ imprisonment on charge 1.
F F
G G
H H
(Bina Chainrai)
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V