A A
DCCC1268/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1268 OF 2009
C C
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D D
HKSAR
E v. E
To Fai
F F
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G G
Before: Deputy District Judge A. Kwok
Date: 22 December 2009 at 10.15 am
H Present: Mr Ira Lui, SPP of the Department of Justice, for H
HKSAR
I
Mr Andrew Kam, of Messrs Kam & Fan, assigned by the I
Director of Legal Aid, for the Defendant
Offence: (1) Burglary (入屋犯法罪)
J (2) Remaining in Hong Kong without the authority of J
the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長
K K
授權而留在香港)
L -------------------- L
Reasons for Sentence
M M
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N N
O 1. The defendant To Fai appeared before me this morning O
and pleaded guilty to two charges. The 1st Charge is Burglary
P contrary to section 11(1)(a)(4) of the Theft Ordinance, Cap. 210 P
and the 2nd Charge is remaining in Hong Kong without the
Q Q
authority of the Director of Immigration after having landed
unlawfully in Hong Kong, contrary to section 38(1)(b) of the
R R
Immigration Ordinance, Cap. 115.
S S
2. The facts of both charges are simple enough. According
T to the amended summary of facts which has been agreed by the T
defendant, he entered Hong Kong illegally on 20 October 2009 by
U hiding himself underneath a container truck which departed from U
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A Shenzhen. He dropped off in the Kwai Chung area and found A
himself in Block 9 of Wonderland Villas before dawn. According
B to the cautioned statement, he told the police frankly that he B
later climbed up the water pipes outside Block 9 of Wonderland
C C
Villas and rested on the canopy outside the flat waiting for a
chance to steal. Later, when it was quiet, and he thought that
D D
nobody was inside the flat, he then entered the flat through the
E toilet window. As the matter unfolded actually the resident of E
the flat, one Mr Lee, was actually alone inside his flat. He
F was, at the time, sleeping alone in his bedroom. At around 3.30 F
pm Mr Lee woke up and went to the kitchen and much to his
G G
surprise, he discovered the presence of the defendant.
H H
3. The confrontation was followed by a brief struggle
I
and, in the course of the struggle, the defendant also scratched I
the neck of Mr Lee leaving a scratch mark of some 2 to 3 inches
J in length. In the end Mr Lee managed to subdue the defendant and J
kept him inside the flat. The matter was later reported to the
K police and the defendant was arrested. Nothing was found missing K
from the flat and the defendant was unable to produce any valid
L L
travel document to police upon inquiry.
M M
4. The defendant was no stranger to the Hong Kong Court.
N He is now aged 27 but back in 2002 and 2004 he appeared in court N
twice for the same pair of charges, namely, burglary and illegal
O remaining for which he was sentenced to 36 months as well as 39 O
months respectively. He is still single and he has only primary
P P
school education.
Q Q
5. In mitigation I was informed that he worked in
R Shenzhen as a car-cleaning worker earning about RMB800 to RMB900 R
each month. Through his lawyer, the defendant expressed his
S plain remorse and he said that he will not come to Hong Kong S
again to commit further offences.
T T
U U
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A 6. Burglary is of course a serious offence. It is well A
settled that the sentence for domestic burglary is 3 years’
B imprisonment as the appropriate starting point. In the present B
case there are, of course, further aggravating factors which
C C
call for an increase of the starting point. In the case of HKSAR
v Cheng Wai Kai CACC338 & 339/2007 the Court of Appeal have
D D
mentioned that one of the reasons for increasing the sentence
E will be that the offender has a previous record, especially a E
similar previous record, and also if the offender is a
F professional burglar and not just an opportunist. F
G G
7. Also in this year, in HKSAR v Fan Kit Hung
CACC62/2009, the Court of Appeal have supplemented that if,
H H
during the course of burglary, there is personal injuries or
I
property damage it was one of another factor which should be I
taken into account when increasing the sentence.
J J
8. The defendant has been convicted of a similar offence
K twice so this is already the third time that he committed a K
similar offence. According to the facts it is clear that the
L L
reason why he entered into Hong Kong illegally was to commit
burglary. It was not open to him to say that he was trying to
M M
sneak in to the flat to steal food out of basic instinct of
N human need to struggle for life. Clearly he could not and did N
not rely on this kind of humanitarian ground in the present
O circumstances. O
P P
9. In my view with the presence of these factors, the 3
years sentence should be added another 6 months for the burglary
Q Q
charges making the total before any discount for plead was 42
R months. Because the defendant has pleaded guilty, which is the R
only mitigating factor, for the burglary charge, Charge 1, the
S proper sentence should therefore be 28 months. S
T T
10. For the 2nd Charge of illegal remaining, according to
the case of So Man King [1989] 1 HKLR 142 the appropriate
U U
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A starting point for this kind of offence even upon a plea of A
guilty is one of 15 months’ imprisonment. Again, the defendant
B had been convicted twice before for the same offence. I note B
that on the second time the court has not increased the
C C
sentence. I think it is time that the court should increase the
sentence on this charge in order to reflect the gravity of the
D D
matter and to send a message that for repeated offender the
E court will always increase the sentence to deter the offender. E
For this charge the court is going to impose a sentence of one
F of 18 months’ imprisonment. F
G G
11. Lastly as to the matter of totality. It was well
settled that the sentence for burglary should usually be
H H
consecutive to the sentence for immigration offences of this
I
kind (see HKSAR v Kei San Man & Another CACC246/1999). Therefore I
I just follow the authority and order that the sentences for the
J two charges to run consecutively making a total sentence of 46 J
months.
K K
L L
M M
N (A. Kwok) N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
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