A A
B DCCC 148/2013 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 148 OF 2013
E E
-----------------------------------
F HKSAR F
v.
G G
DUONG MINH AN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 11th April 2013 at 10:38 am I
Present: Mr. Felix Tam, Acting Senior Public Prosecutor, of the
J J
Department of Justice, for HKSAR
K K
Mr. Godwin Chan of M/s Godwin Chan & Co, assigned by
L
DLA, for the Defendant L
Offences: 1 – 4) Burglary (入屋犯法罪)
M M
5) Breach of condition of stay (違反逗留條件)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to 4 charges of Burglary1 and 1 P
charge of Breach of Condition of Stay2.
Q Q
R Facts R
Charge 1
S S
T T
1
contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 2 -
A A
B 2. On coming to work on 26th October 2012, the manager of B
Burger King fast food restaurant located at passenger terminal building 2
C C
of the Hong Kong International Airport discovered that 4 padlocks, 2
D bundles of keys and some food (total value $270) had gone missing from D
the kitchen. The key and padlocks were used to secure the fridge and they
E E
had been left on the shelf in the restaurant previously.
F F
3. Upon reviewing of closed circuit television footage, the
G G
defendant was seen to have climbed over the service counter to enter the
H kitchen on 25th October 2012, leaving by the same route after stealing. H
I I
Charge 2
J J
4. 12 days later on 7th November, the manager of Macau
K K
Restaurant at the same passenger terminal building found that 9 bottles of
L L
wine (total value of $360) had been stolen from a display shelf in the
M
restaurant the night before. M
N N
5. Upon reviewing of closed circuit television footage, the
O defendant was seen to have removed the wines from the cabinet and O
leaving the restaurant via the rear door.
P P
Q Charges 3 and 4 Q
R R
S S
2
contrary to s.41 of the Immigration Ordinance, Cap.115
T T
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CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
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- 3 -
A A
B 6. 3 days later on 10th November, 2 Police officers were B
patrolling the food court area at the airport at around 3:50am when they
C C
saw the defendant climbing over the service counter of Famous Famiglia
D restaurant to enter the restaurant which was also located at the same D
passenger terminal as the previous 2 restaurants. In fact, Famous Famiglia
E E
and Burger King shared the same kitchen.
F F
7. Shortly afterwards, the defendant emerged over the counter of
G G
the adjacent Burger King restaurant, carrying 5 boxes which belonged to
H Famous Famiglia ($50) and some food items belonging to Burger King H
($145).
I I
J 8. The defendant was stopped and arrested. Under caution, he J
admitted that he was hungry and had climbed into the kitchen of Famous
K K
Famiglia, and then stole some frozen food and was leaving through Burger
L L
King. The defendant was remorseful and apologized.
M M
9. At later cautioned interviews, the defendant admitted that it
N N
was he who had stolen from Burger King on 25th October as he was very
O hungry. He found some keys and opened the fridge, took some spaghetti O
and hotcakes to eat and he also took away the padlock and keys which he
P P
later disposed of.
Q Q
10. The defendant admitted that it was he who had entered Macau
R R
Restaurant through a door and had taken the red wines before leaving via
S the rear door. S
T T
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- 4 -
A A
B 11. The defendant claimed that he was in Hong Kong for transit B
to Japan for medical treatment but as a result of mistakes during transit,
C C
someone had taken his air-ticket and money away and the defendant had to
D continue to stay. D
E E
Charge 5
F F
12. The defendant arrived in Hong Kong on 7th June 2012 and
G G
was permitted to stay for 90 days. He had overstayed by about 2 months.
H H
Previous convictions
I I
J 13. The defendant is of previously clear record. J
K K
Mitigation
L L
M
14. The defendant is 34 years old and a Danish Passport holder. It M
was said at first that the defendant was born in Denmark but the place of
N N
birth was stated as Vietnam in the defendant’s passport. The defendant was
O however educated in Denmark to High School level. We do not know how O
the defendant came to be in Denmark as even his representing lawyer was
P P
unable to extract that information from him. His parents reside in Denmark.
Q The defendant has no siblings. He was a part time football coach earning Q
around $1,000 Euros per month before arriving in Hong Kong.
R R
S 15. I was told in mitigation that the defendant’s original plan was S
to transit to Japan to seek treatment for his wrist pain after arriving in Hong
T T
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- 5 -
A A
B Kong on 7th June 2012. Later on he mentioned that he had coaching job in B
Japan as well but he was not able to give further details. Somehow, having
C C
landed in Hong Kong, the defendant strayed out of the transit area and lost
D his luggage together with his air-ticket, phone and some money. The D
defendant made a report to the Police on the same day about his loss but
E E
they were not able to help him.
F F
16. The defendant was hungry and thirsty at the time of the
G G
commission of the burglary offences. He frankly admitted his acts in his
H cautioned interviews and admitted to the offences. The defendant was H
acting alone, no special tools were used and there was no breaking in or
I I
forced entry. The stolen property is of totally $825 only. It was submitted
J that the defendant committed the burglaries out of necessity. In relation to J
the overstaying charge, it was pointed out correctly that the length of
K K
overstaying was relatively short.
L L
M
17. Given the possibility that the defendant was the victim of a M
crime himself, I proceeded to try to obtain more information from the
N N
defendant directly. The defendant told the court that he went to London
O from Europe because he would go around Europe working as a football O
coach. He flew direct to Hong Kong from London. After landing in Hong
P P
Kong, he did retrieve his luggage but it was stolen when he left his bag and
Q went to the washroom. The defendant was however unable to say for sure Q
how many pieces of luggage he had brought from London, just that it was 3
R R
or 4 pieces.
S S
T T
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- 6 -
A A
B 18. The defendant said he reported the loss at Po Lam Police B
Station. After that, he had been sleeping on the street, including Choi Hung
C C
Estate. This was confirmed by an incident dated 10th June when the
D defendant was seen sitting in a park in Choi Hung Estate and Police was D
notified when the defendant refused to answer questions asked of him by
E E
the security guard there. Upon investigation, the Police officer took no
F further action but provided the phone number of the Danish Consulate F
General in Hong Kong and told the defendant to make a call to seek their
G G
assistance.
H H
19. Having heard from the defendant directly, I wondered if there
I I
might be more behind the defendant’s story that would impact on the
J sentence to be adopted. I therefore adjourned the case for a background J
report on the defendant to be prepared. Unfortunately, the defendant
K K
refused to render any assistance to the interviewing probation officer,
L L
causing him to be unable to furnish such a report.
M M
20. When the defendant appeared again in front of this court, he
N N
was clearly reluctant for anyone to try to probe into his personal history
O and just wanted the matter to be dealt with as soon as possible. After O
lengthy discussion with his counsel and the prosecution, I decided that the
P P
defendant will be sentenced based on the currents facts available to the
Q court. Q
R R
21. Fortunately, the Police was able to provide me with 3 incident
S reports involving the defendant after his arrival in Hong Kong on 7th June. S
T T
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CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 7 -
A A
B 22. The first report shows that the defendant was telling the truth B
when he said he had made a report to the Police on 7th June 2012 about
C C
losing his luggage having landed in Hong Kong while awaiting transit. The
D only difference in his story in court is that he said he was going to Japan D
instead of Taiwan.
E E
F 23. That report was made at Tseun Kwan O Police station. The F
facts as stated in the case details report are that the defendant had lost his
G G
luggage due to his carelessness and he had no idea how and where he lost it.
H No further action was taken by the Police in relation to this incident. H
I I
th
24. The second report shows that a few days later on 10 June, the
J defendant was seen sitting in a park in Choi Hung Estate in Kowloon. J
Police was summoned and the defendant said something like he wanted to
K K
find his father but he did not know where he lived. The defendant refused
L L
Police assistance. The Police officer very sensibly provided the telephone
M
number of the Denmark Consulate in Hong Kong to the defendant. No M
further action was taken.
N N
O 25. The third case details report shows that almost 2 months later, O
on 5th August, the defendant made a ‘lost report’ to a staff member of the
P P
Chanel Shop situated at L5, terminal 2 of the Hong Kong International
Q Airport, who then reported the matter to the Police. Upon investigation the Q
Police found out about the defendant’s earlier report made to the Police.
R R
The staff member very helpfully tried to contact the Danish Consulate but
S since it was a Sunday there was no reply. The staff member said that he S
will follow up with the case and no Police help was needed. No further
T T
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V V
- 8 -
A A
B action was taken and case marked as closed. For what it is worth, a search B
on the internet suggests that the Royal Danish Consulate in Hong Kong
C C
had been closed for good since 1st August 2012.
D D
Sentence
E E
F 26. The maximum sentence for burglary is that of 14 years’ F
imprisonment. The guideline sentence for burglary of a non-domestic
G G
premises is that of 2 and a half year’s imprisonment.
H H
27. The maximum sentence for charge 5 is that of a level 5 fine
I I
and imprisonment for 2 years.
J J
28. The defendant stole out of hunger. He committed the offences
K K
within a short time frame but the commission of the offences are in line
L L
with his story of being stranded in Hong Kong and without means to get
M
food. Charges 3 and 4 were practically committed at the same time. Based M
on his mitigation, the defendant stole because he was stuck in Hong Kong
N N
and was forced to overstay.
O O
29. I find that it is very difficult to understand how a football
P P
coach who works in Denmark and Europe would end up stealing in an
Q airport in Hong Kong, and this was supposedly when he was en route to Q
Japan to have his injured hand treated. Furthermore, the defendant was
R R
very vague in the details about his movement and the reason why he was
S stranded in Hong Kong. S
T T
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V V
- 9 -
A A
B 30. There are many unanswered questions in the case but the fact B
remains that the defendant is a Danish passport holder who flew to Hong
C C
Kong on 7th June and seemed to have lost his luggage. He is unable to
D provide a phone number or an address and so no one had been able to assist D
him in trying to contact his family.
E E
F 31. Having seen and heard the defendant in court, I find that there F
is some incoherence in his speech and am genuinely concerned about his
G G
mental well-being. Nevertheless, given the inability on the defendant’s
H part to provide further information and the unfortunate coincidence of the H
closing down of the Danish Consulate in Hong Kong, there is nothing else
I I
that the court can do apart from arranging for the eventual repatriation of
J the defendant to Denmark. J
K K
32. Bearing in mind the rather unusual circumstances of this case,
L L
I find that there is ground to depart from the guideline sentence, if for
M
humanitarian reason and nothing else. I find that a proper starting point for M
each of the burglary charges is that of 9 months’ imprisonment, and that for
N N
the overstaying charge a sentence of 3 months’ imprisonment.
O O
33. I will grant the defendant the full one third discount for all the
P P
charges in recognition of his guilty plea and sentence him to 6 months’
Q imprisonment on each of the 4 burglary charges and 2 months’ Q
imprisonment on the overstaying charge.
R R
S Totality S
T T
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- 10 -
A A
B 34. Given the strange and unfortunate circumstances of the B
defendant, I will order that the sentences in all 5 charges to be served
C C
concurrently. The defendant is therefore sentenced to a total of 6 months’
D imprisonment for all 5 charges. D
E E
35. Given the fact that the defendant had been in remand for some
F 6 months, I anticipate the defendant will be released from jail shortly, and I F
order that the defendant be repatriated back to Denmark as soon as is
G G
practicable after his release.
H H
I I
J (Douglas T.H .Yau) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
A A
B DCCC 148/2013 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 148 OF 2013
E E
-----------------------------------
F HKSAR F
v.
G G
DUONG MINH AN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 11th April 2013 at 10:38 am I
Present: Mr. Felix Tam, Acting Senior Public Prosecutor, of the
J J
Department of Justice, for HKSAR
K K
Mr. Godwin Chan of M/s Godwin Chan & Co, assigned by
L
DLA, for the Defendant L
Offences: 1 – 4) Burglary (入屋犯法罪)
M M
5) Breach of condition of stay (違反逗留條件)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to 4 charges of Burglary1 and 1 P
charge of Breach of Condition of Stay2.
Q Q
R Facts R
Charge 1
S S
T T
1
contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 2 -
A A
B 2. On coming to work on 26th October 2012, the manager of B
Burger King fast food restaurant located at passenger terminal building 2
C C
of the Hong Kong International Airport discovered that 4 padlocks, 2
D bundles of keys and some food (total value $270) had gone missing from D
the kitchen. The key and padlocks were used to secure the fridge and they
E E
had been left on the shelf in the restaurant previously.
F F
3. Upon reviewing of closed circuit television footage, the
G G
defendant was seen to have climbed over the service counter to enter the
H kitchen on 25th October 2012, leaving by the same route after stealing. H
I I
Charge 2
J J
4. 12 days later on 7th November, the manager of Macau
K K
Restaurant at the same passenger terminal building found that 9 bottles of
L L
wine (total value of $360) had been stolen from a display shelf in the
M
restaurant the night before. M
N N
5. Upon reviewing of closed circuit television footage, the
O defendant was seen to have removed the wines from the cabinet and O
leaving the restaurant via the rear door.
P P
Q Charges 3 and 4 Q
R R
S S
2
contrary to s.41 of the Immigration Ordinance, Cap.115
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 3 -
A A
B 6. 3 days later on 10th November, 2 Police officers were B
patrolling the food court area at the airport at around 3:50am when they
C C
saw the defendant climbing over the service counter of Famous Famiglia
D restaurant to enter the restaurant which was also located at the same D
passenger terminal as the previous 2 restaurants. In fact, Famous Famiglia
E E
and Burger King shared the same kitchen.
F F
7. Shortly afterwards, the defendant emerged over the counter of
G G
the adjacent Burger King restaurant, carrying 5 boxes which belonged to
H Famous Famiglia ($50) and some food items belonging to Burger King H
($145).
I I
J 8. The defendant was stopped and arrested. Under caution, he J
admitted that he was hungry and had climbed into the kitchen of Famous
K K
Famiglia, and then stole some frozen food and was leaving through Burger
L L
King. The defendant was remorseful and apologized.
M M
9. At later cautioned interviews, the defendant admitted that it
N N
was he who had stolen from Burger King on 25th October as he was very
O hungry. He found some keys and opened the fridge, took some spaghetti O
and hotcakes to eat and he also took away the padlock and keys which he
P P
later disposed of.
Q Q
10. The defendant admitted that it was he who had entered Macau
R R
Restaurant through a door and had taken the red wines before leaving via
S the rear door. S
T T
U U
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V V
- 4 -
A A
B 11. The defendant claimed that he was in Hong Kong for transit B
to Japan for medical treatment but as a result of mistakes during transit,
C C
someone had taken his air-ticket and money away and the defendant had to
D continue to stay. D
E E
Charge 5
F F
12. The defendant arrived in Hong Kong on 7th June 2012 and
G G
was permitted to stay for 90 days. He had overstayed by about 2 months.
H H
Previous convictions
I I
J 13. The defendant is of previously clear record. J
K K
Mitigation
L L
M
14. The defendant is 34 years old and a Danish Passport holder. It M
was said at first that the defendant was born in Denmark but the place of
N N
birth was stated as Vietnam in the defendant’s passport. The defendant was
O however educated in Denmark to High School level. We do not know how O
the defendant came to be in Denmark as even his representing lawyer was
P P
unable to extract that information from him. His parents reside in Denmark.
Q The defendant has no siblings. He was a part time football coach earning Q
around $1,000 Euros per month before arriving in Hong Kong.
R R
S 15. I was told in mitigation that the defendant’s original plan was S
to transit to Japan to seek treatment for his wrist pain after arriving in Hong
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 5 -
A A
B Kong on 7th June 2012. Later on he mentioned that he had coaching job in B
Japan as well but he was not able to give further details. Somehow, having
C C
landed in Hong Kong, the defendant strayed out of the transit area and lost
D his luggage together with his air-ticket, phone and some money. The D
defendant made a report to the Police on the same day about his loss but
E E
they were not able to help him.
F F
16. The defendant was hungry and thirsty at the time of the
G G
commission of the burglary offences. He frankly admitted his acts in his
H cautioned interviews and admitted to the offences. The defendant was H
acting alone, no special tools were used and there was no breaking in or
I I
forced entry. The stolen property is of totally $825 only. It was submitted
J that the defendant committed the burglaries out of necessity. In relation to J
the overstaying charge, it was pointed out correctly that the length of
K K
overstaying was relatively short.
L L
M
17. Given the possibility that the defendant was the victim of a M
crime himself, I proceeded to try to obtain more information from the
N N
defendant directly. The defendant told the court that he went to London
O from Europe because he would go around Europe working as a football O
coach. He flew direct to Hong Kong from London. After landing in Hong
P P
Kong, he did retrieve his luggage but it was stolen when he left his bag and
Q went to the washroom. The defendant was however unable to say for sure Q
how many pieces of luggage he had brought from London, just that it was 3
R R
or 4 pieces.
S S
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 6 -
A A
B 18. The defendant said he reported the loss at Po Lam Police B
Station. After that, he had been sleeping on the street, including Choi Hung
C C
Estate. This was confirmed by an incident dated 10th June when the
D defendant was seen sitting in a park in Choi Hung Estate and Police was D
notified when the defendant refused to answer questions asked of him by
E E
the security guard there. Upon investigation, the Police officer took no
F further action but provided the phone number of the Danish Consulate F
General in Hong Kong and told the defendant to make a call to seek their
G G
assistance.
H H
19. Having heard from the defendant directly, I wondered if there
I I
might be more behind the defendant’s story that would impact on the
J sentence to be adopted. I therefore adjourned the case for a background J
report on the defendant to be prepared. Unfortunately, the defendant
K K
refused to render any assistance to the interviewing probation officer,
L L
causing him to be unable to furnish such a report.
M M
20. When the defendant appeared again in front of this court, he
N N
was clearly reluctant for anyone to try to probe into his personal history
O and just wanted the matter to be dealt with as soon as possible. After O
lengthy discussion with his counsel and the prosecution, I decided that the
P P
defendant will be sentenced based on the currents facts available to the
Q court. Q
R R
21. Fortunately, the Police was able to provide me with 3 incident
S reports involving the defendant after his arrival in Hong Kong on 7th June. S
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 7 -
A A
B 22. The first report shows that the defendant was telling the truth B
when he said he had made a report to the Police on 7th June 2012 about
C C
losing his luggage having landed in Hong Kong while awaiting transit. The
D only difference in his story in court is that he said he was going to Japan D
instead of Taiwan.
E E
F 23. That report was made at Tseun Kwan O Police station. The F
facts as stated in the case details report are that the defendant had lost his
G G
luggage due to his carelessness and he had no idea how and where he lost it.
H No further action was taken by the Police in relation to this incident. H
I I
th
24. The second report shows that a few days later on 10 June, the
J defendant was seen sitting in a park in Choi Hung Estate in Kowloon. J
Police was summoned and the defendant said something like he wanted to
K K
find his father but he did not know where he lived. The defendant refused
L L
Police assistance. The Police officer very sensibly provided the telephone
M
number of the Denmark Consulate in Hong Kong to the defendant. No M
further action was taken.
N N
O 25. The third case details report shows that almost 2 months later, O
on 5th August, the defendant made a ‘lost report’ to a staff member of the
P P
Chanel Shop situated at L5, terminal 2 of the Hong Kong International
Q Airport, who then reported the matter to the Police. Upon investigation the Q
Police found out about the defendant’s earlier report made to the Police.
R R
The staff member very helpfully tried to contact the Danish Consulate but
S since it was a Sunday there was no reply. The staff member said that he S
will follow up with the case and no Police help was needed. No further
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 8 -
A A
B action was taken and case marked as closed. For what it is worth, a search B
on the internet suggests that the Royal Danish Consulate in Hong Kong
C C
had been closed for good since 1st August 2012.
D D
Sentence
E E
F 26. The maximum sentence for burglary is that of 14 years’ F
imprisonment. The guideline sentence for burglary of a non-domestic
G G
premises is that of 2 and a half year’s imprisonment.
H H
27. The maximum sentence for charge 5 is that of a level 5 fine
I I
and imprisonment for 2 years.
J J
28. The defendant stole out of hunger. He committed the offences
K K
within a short time frame but the commission of the offences are in line
L L
with his story of being stranded in Hong Kong and without means to get
M
food. Charges 3 and 4 were practically committed at the same time. Based M
on his mitigation, the defendant stole because he was stuck in Hong Kong
N N
and was forced to overstay.
O O
29. I find that it is very difficult to understand how a football
P P
coach who works in Denmark and Europe would end up stealing in an
Q airport in Hong Kong, and this was supposedly when he was en route to Q
Japan to have his injured hand treated. Furthermore, the defendant was
R R
very vague in the details about his movement and the reason why he was
S stranded in Hong Kong. S
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 9 -
A A
B 30. There are many unanswered questions in the case but the fact B
remains that the defendant is a Danish passport holder who flew to Hong
C C
Kong on 7th June and seemed to have lost his luggage. He is unable to
D provide a phone number or an address and so no one had been able to assist D
him in trying to contact his family.
E E
F 31. Having seen and heard the defendant in court, I find that there F
is some incoherence in his speech and am genuinely concerned about his
G G
mental well-being. Nevertheless, given the inability on the defendant’s
H part to provide further information and the unfortunate coincidence of the H
closing down of the Danish Consulate in Hong Kong, there is nothing else
I I
that the court can do apart from arranging for the eventual repatriation of
J the defendant to Denmark. J
K K
32. Bearing in mind the rather unusual circumstances of this case,
L L
I find that there is ground to depart from the guideline sentence, if for
M
humanitarian reason and nothing else. I find that a proper starting point for M
each of the burglary charges is that of 9 months’ imprisonment, and that for
N N
the overstaying charge a sentence of 3 months’ imprisonment.
O O
33. I will grant the defendant the full one third discount for all the
P P
charges in recognition of his guilty plea and sentence him to 6 months’
Q imprisonment on each of the 4 burglary charges and 2 months’ Q
imprisonment on the overstaying charge.
R R
S Totality S
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V
- 10 -
A A
B 34. Given the strange and unfortunate circumstances of the B
defendant, I will order that the sentences in all 5 charges to be served
C C
concurrently. The defendant is therefore sentenced to a total of 6 months’
D imprisonment for all 5 charges. D
E E
35. Given the fact that the defendant had been in remand for some
F 6 months, I anticipate the defendant will be released from jail shortly, and I F
order that the defendant be repatriated back to Denmark as soon as is
G G
practicable after his release.
H H
I I
J (Douglas T.H .Yau) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT21/11.4.2013 DCCC148/2013/Reasons for Sentence
V V