A A
DCCC 560/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 560 OF 2013
C C
----------------------
D D
HKSAR
E v E
Miao Wenlue
F F
----------------------
G G
Before: HH Judge Tallentire
Date: 17 September 2013 at 9.54 am
H Present: Mr Francis Haddon-Cave, Counsel on fiat, for HKSAR H
Mr Tam Kin-yip, Patrick, instructed by Tai, Tang
& Chong, assigned by the Director of Legal Aid, for
I the defendant I
Offence: (1) Attempted burglary (企圖入屋犯法罪)
J (3) Going equipped for stealing (外出時備有偷竊用的物品) J
(2) and (4) Remaining in Hong Kong without the
authority of the Director of Immigration after having
K K
landed unlawfully in Hong Kong (在香港非法入境後未得入境事
務處處長授權而留在香港)
L L
---------------------
M Reasons for Sentence M
N --------------------- N
O 1. Defendant, you pleaded guilty to one offence of O
attempted burglary, contrary to sections 11(1)(a) and (4) of the
P P
Theft Ordinance, Cap 210 and section 159G of the Crimes
Ordinance, Cap 200. You also pleaded guilty to two offences of
Q Q
unlawfully remaining in Hong Kong without the authority of the
R Director of Immigration, contrary to section 38(1)(b) of the R
Immigration Ordinance, Cap 115.
S S
2. You admitted the Brief Facts. I convicted you on those
T three offences. You pleaded not guilty to one offence of going T
equipped for stealing, contrary to section 27(1) of the Theft
U U
Ordinance, Cap 210. That was ordered to be left on the file and
CRT31/17.9.2013/KS 1 DCCC 560/2013/Sentence
V V
A A
not to be proceeded with without leave of this court or the
Court of Appeal.
B B
C 3. The Brief Facts were as follows. C
D Charge 1, Attempted burglary D
E E
Ali’s Luxury Bags Shop was situated at Room E, Po Ming
Building, 96-106 Percival Street, Causeway Bay. At about 7 pm on
F F
9 February of this year, a staff member locked the door and
G activated the burglar alarm before he left. Thereafter, the shop G
was closed for Chinese New Year. At about 8.45 am on
H 11 February, the caretaker saw an unknown man wandering around. H
She made inquiries with the unknown man. That man left, and she
I I
found that the burglar alarm of the shop was cut off. Burglary
equipment, namely padlocks, gloves, screwdrivers, a hammer,
J J
carry bags, crowbars, pliers, were found inside a luggage which
K
was discarded at the front door of the shop. There were prise K
marks on the front door of the shop. The padlock of the shop was
L damaged. A member of staff of a nearby restaurant saw three L
unknown men, who fled via the rear entrance of the building.
M M
4. You and two unknown men were captured on the CCTV of
N N
the shop. In short, you and two other persons attempted to
burgle the shop on 11 February.
O O
P Charge 2, Unlawfully remaining P
Q 5. Defendant, you unlawfully entered Hong Kong before the Q
incident in Charge 1. You remained in Hong Kong without the
R R
authority of the Director of Immigration on 11 February of this
year. After the commission of the offence, you left Hong Kong.
S S
T T
U U
CRT31/17.9.2013/KS 2 DCCC 560/2013/Sentence
V V
A A
Charge 4, Unlawfully remaining
B B
6. In a video-recorded interview under caution on 6 March
C of this year you told the police how you came to Hong Kong from C
the mainland unlawfully on 4 March on a speedboat from Shekou.
D You arrived at Lau Fau Shan at about 10 pm on that day. You took D
a taxi then to Yuen Long, where you met up with a friend. That
E E
friend asked you to go to Causeway Bay, which you did. You
therefore remained in Hong Kong on 5 March without the authority
F F
of the Director of Immigration.
G G
7. You admitted to four previous convictions on three
H occasions, one of which was similar. H
I I
8. On your behalf, Mr Tam entered mitigation. I am very
much obliged to him for reducing that mitigation to writing.
J J
That is extremely helpful. He dealt first of all with your
K
background. He told me that you are 33 years of age, you were K
born in mainland China, and you are married. You have one
L daughter, who is aged 3, and your wife is a housewife. Prior to L
arrest, you were working as a decorator on the mainland, earning
M about 2,000 Renminbi per month. You are the sole breadwinner of M
the family. You are educated to Primary 6 level.
N N
9. The main areas of mitigation were first of all your
O O
plea of guilty and you are deeply remorseful for what you have
P done. Upon arrest you were co-operative with the police. You P
committed the offence out of momentary greed. You faced
Q financial difficulties in the mainland and your friend invited Q
you to go to Hong Kong to earn quick money. If the entry in
R R
respect of Charge 1 had been successful, you would have received
5,000 Renminbi. However, the shop lost nothing, and you have
S S
received no reward. You promise not to commit these offences
T again. Mr Tam makes the point that you will be going to gaol and T
that that will be a great hardship to be parted from your
U family. You understand the seriousness of these offences. U
CRT31/17.9.2013/KS 3 DCCC 560/2013/Sentence
V V
A A
Mr Tam invites me to make all sentences concurrent. With
reference to your record, the charge under the third conviction,
B B
which is two charges, he says arose because of your own
C admission whilst in prison. Finally, Mr Tam asks me to be as C
lenient as possible.
D D
10. I turn now to the sentences themselves. Whilst it is a
E E
well-established fact that in circumstances like this, the
sentences should run consecutively, however, there is always
F F
room and discretion to apply the totality principle.
G G
11. The main point in mitigation that I can see is your
H plea of guilty, and I accept that you were co-operative with the H
police. I note your previous convictions, especially one
I I
similar. I also note the hardship that you will face in gaol,
being separated from your family.
J J
K
12. The most serious of the three offences is of course K
the 1st charge, but nothing was actually taken. This was an
L attempt, not a complete offence. The following sentences will be L
imposed.
M M
13. In respect of the 1st offence, I take as a starting
N N
point 27 months’ imprisonment, reduced to 18 months for your
plea of guilty. In respect of the 2nd offence, you will go to
O O
prison for 15 months, which will be consecutive. In respect of
P the 4th offence, you will go to prison for 15 months, but that P
will be concurrent, to apply the principle of totality, and out
Q of mercy. Q
R R
S S
T T
U U
CRT31/17.9.2013/KS 4 DCCC 560/2013/Sentence
V V
A A
14. You will therefore go to prison for a total of
33 months.
B B
C C
D D
E Tallentire E
District Judge
F F
G G
H H
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
CRT31/17.9.2013/KS 5 DCCC 560/2013/Sentence
V V
A A
DCCC 560/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 560 OF 2013
C C
----------------------
D D
HKSAR
E v E
Miao Wenlue
F F
----------------------
G G
Before: HH Judge Tallentire
Date: 17 September 2013 at 9.54 am
H Present: Mr Francis Haddon-Cave, Counsel on fiat, for HKSAR H
Mr Tam Kin-yip, Patrick, instructed by Tai, Tang
& Chong, assigned by the Director of Legal Aid, for
I the defendant I
Offence: (1) Attempted burglary (企圖入屋犯法罪)
J (3) Going equipped for stealing (外出時備有偷竊用的物品) J
(2) and (4) Remaining in Hong Kong without the
authority of the Director of Immigration after having
K K
landed unlawfully in Hong Kong (在香港非法入境後未得入境事
務處處長授權而留在香港)
L L
---------------------
M Reasons for Sentence M
N --------------------- N
O 1. Defendant, you pleaded guilty to one offence of O
attempted burglary, contrary to sections 11(1)(a) and (4) of the
P P
Theft Ordinance, Cap 210 and section 159G of the Crimes
Ordinance, Cap 200. You also pleaded guilty to two offences of
Q Q
unlawfully remaining in Hong Kong without the authority of the
R Director of Immigration, contrary to section 38(1)(b) of the R
Immigration Ordinance, Cap 115.
S S
2. You admitted the Brief Facts. I convicted you on those
T three offences. You pleaded not guilty to one offence of going T
equipped for stealing, contrary to section 27(1) of the Theft
U U
Ordinance, Cap 210. That was ordered to be left on the file and
CRT31/17.9.2013/KS 1 DCCC 560/2013/Sentence
V V
A A
not to be proceeded with without leave of this court or the
Court of Appeal.
B B
C 3. The Brief Facts were as follows. C
D Charge 1, Attempted burglary D
E E
Ali’s Luxury Bags Shop was situated at Room E, Po Ming
Building, 96-106 Percival Street, Causeway Bay. At about 7 pm on
F F
9 February of this year, a staff member locked the door and
G activated the burglar alarm before he left. Thereafter, the shop G
was closed for Chinese New Year. At about 8.45 am on
H 11 February, the caretaker saw an unknown man wandering around. H
She made inquiries with the unknown man. That man left, and she
I I
found that the burglar alarm of the shop was cut off. Burglary
equipment, namely padlocks, gloves, screwdrivers, a hammer,
J J
carry bags, crowbars, pliers, were found inside a luggage which
K
was discarded at the front door of the shop. There were prise K
marks on the front door of the shop. The padlock of the shop was
L damaged. A member of staff of a nearby restaurant saw three L
unknown men, who fled via the rear entrance of the building.
M M
4. You and two unknown men were captured on the CCTV of
N N
the shop. In short, you and two other persons attempted to
burgle the shop on 11 February.
O O
P Charge 2, Unlawfully remaining P
Q 5. Defendant, you unlawfully entered Hong Kong before the Q
incident in Charge 1. You remained in Hong Kong without the
R R
authority of the Director of Immigration on 11 February of this
year. After the commission of the offence, you left Hong Kong.
S S
T T
U U
CRT31/17.9.2013/KS 2 DCCC 560/2013/Sentence
V V
A A
Charge 4, Unlawfully remaining
B B
6. In a video-recorded interview under caution on 6 March
C of this year you told the police how you came to Hong Kong from C
the mainland unlawfully on 4 March on a speedboat from Shekou.
D You arrived at Lau Fau Shan at about 10 pm on that day. You took D
a taxi then to Yuen Long, where you met up with a friend. That
E E
friend asked you to go to Causeway Bay, which you did. You
therefore remained in Hong Kong on 5 March without the authority
F F
of the Director of Immigration.
G G
7. You admitted to four previous convictions on three
H occasions, one of which was similar. H
I I
8. On your behalf, Mr Tam entered mitigation. I am very
much obliged to him for reducing that mitigation to writing.
J J
That is extremely helpful. He dealt first of all with your
K
background. He told me that you are 33 years of age, you were K
born in mainland China, and you are married. You have one
L daughter, who is aged 3, and your wife is a housewife. Prior to L
arrest, you were working as a decorator on the mainland, earning
M about 2,000 Renminbi per month. You are the sole breadwinner of M
the family. You are educated to Primary 6 level.
N N
9. The main areas of mitigation were first of all your
O O
plea of guilty and you are deeply remorseful for what you have
P done. Upon arrest you were co-operative with the police. You P
committed the offence out of momentary greed. You faced
Q financial difficulties in the mainland and your friend invited Q
you to go to Hong Kong to earn quick money. If the entry in
R R
respect of Charge 1 had been successful, you would have received
5,000 Renminbi. However, the shop lost nothing, and you have
S S
received no reward. You promise not to commit these offences
T again. Mr Tam makes the point that you will be going to gaol and T
that that will be a great hardship to be parted from your
U family. You understand the seriousness of these offences. U
CRT31/17.9.2013/KS 3 DCCC 560/2013/Sentence
V V
A A
Mr Tam invites me to make all sentences concurrent. With
reference to your record, the charge under the third conviction,
B B
which is two charges, he says arose because of your own
C admission whilst in prison. Finally, Mr Tam asks me to be as C
lenient as possible.
D D
10. I turn now to the sentences themselves. Whilst it is a
E E
well-established fact that in circumstances like this, the
sentences should run consecutively, however, there is always
F F
room and discretion to apply the totality principle.
G G
11. The main point in mitigation that I can see is your
H plea of guilty, and I accept that you were co-operative with the H
police. I note your previous convictions, especially one
I I
similar. I also note the hardship that you will face in gaol,
being separated from your family.
J J
K
12. The most serious of the three offences is of course K
the 1st charge, but nothing was actually taken. This was an
L attempt, not a complete offence. The following sentences will be L
imposed.
M M
13. In respect of the 1st offence, I take as a starting
N N
point 27 months’ imprisonment, reduced to 18 months for your
plea of guilty. In respect of the 2nd offence, you will go to
O O
prison for 15 months, which will be consecutive. In respect of
P the 4th offence, you will go to prison for 15 months, but that P
will be concurrent, to apply the principle of totality, and out
Q of mercy. Q
R R
S S
T T
U U
CRT31/17.9.2013/KS 4 DCCC 560/2013/Sentence
V V
A A
14. You will therefore go to prison for a total of
33 months.
B B
C C
D D
E Tallentire E
District Judge
F F
G G
H H
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
CRT31/17.9.2013/KS 5 DCCC 560/2013/Sentence
V V