A A
B B
DCCC 343/2022
[2023] HKDC 532
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 343 OF 2022 E
F F
------------------------------
G G
HKSAR
H
v H
YU YIHAN ALSO KNOWN AS YU YEEHON 余义汉 (D1)
I I
YU CHANGXU 余昌旭 (D2)
J YU XIAOBING 余小兵 (D3) J
K
------------------------------ K
L L
Before: HH Judge Kathie Cheung
M
Date: 20 April 2023 M
Present: Ms. LAW Lai Ming, Karen, Public Prosecutor, for HKSAR
N N
Ms. TSANG Tsz Ching Emma, instructed by Messrs. Adrian
O Yeung & Cheng, assigned by the Director of Legal Aid for O
D1
P P
Mr. MA Ming Tak Stephen, instructed by Messrs. Augustine
Q C.Y. Tong & Co., assigned by the Director of Legal Aid for Q
D2
R R
Ms. LAI S.M. Annie, instructed by Messrs. Edward Lau
S Phoebe Ng Solicitors LLP, assigned by the Director of Legal S
Aid for D3
T T
U U
V V
A A
B B
Offences: [1] Burglary (入屋犯法罪)- D1, D2 & D3
C [2] Going equipped for stealing (外出時備有偷竊用的物 C
品)- D3
D D
[3] Going equipped for stealing (外出時備有偷竊用的物
E E
品)- D2
F [4] Remaining in Hong Kong without the authority of the F
Director of Immigration after having landed unlawfully in
G G
Hong Kong (在香港非法入境後未得入境事務處處長授權
H H
而留在香港)- D3
I [5] Remaining in Hong Kong without the authority of the I
Director of Immigration after having landed unlawfully in
J J
Hong Kong (在香港非法入境後未得入境事務處處長授權
K 而留在香港)- D1 K
[6] Remaining in Hong Kong without the authority of the
L L
Director of Immigration after having landed unlawfully in
M M
Hong Kong (在香港非法入境後未得入境事務處處長授權
N 而留在香港)- D2 N
O O
P P
---------------------------------------
Q Q
REASONS FOR SENTENCE
R --------------------------------------- R
S S
T 1. All three defendants pleaded guilty to one count of burglary, T
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210
U U
2
V V
A A
B B
(Charge 1). Each of them pleaded guilty to one count of remaining in Hong
C Kong without the authority of the Director of Immigration after having C
landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the
D D
Immigration Ordinance, Cap. 115 (Charges 4-6). Each of the second and
E third defendants pleaded not guilty to the offence of going equipped for E
stealing, contrary to section 27(1) of the Theft Ordinance, Cap. 210
F F
(Charges 2-3). Upon application by the prosecution, Charges 2-3 are to be
G left on court file, and not to be proceeded with without the court’s leave. G
H H
Facts
I I
2. At about 3:45 p.m. on 2 October 2021, Ms. Ng Lai Chun and
J J
her children left their home at the Front Portion, 1st Floor, 133 Tai Nan
K Street, Mong Kok (“the Premises”). Before they left, Ms. Ng ensured that K
the metal gate and wooden door of the Premises had been locked securely.
L L
M 3. At about 8:40 p.m. on the same day, when Ms. Ng returned M
home with her family, they found the metal gate and wooden door prized
N N
open, the locks damaged, and the door left ajar. Two bedrooms had been
O ransacked. O
P P
4. Ms. Ng found the following properties missing (“the Stolen
Q Properties”): Q
R R
(1) cash of HK$15,000;
S S
(2) a silver necklace with heart-shaped pendant;
T T
U U
3
V V
A A
B B
(3) a blue butterfly-shaped brooch;
C C
(4) a golden bracelet;
D D
E (5) a red box, containing items (6)-(8) below; E
F F
(6) a key to a safe;
G G
(7) a silver ring;
H H
I (8) seven coins (six 1997 edition coins and a 5-cent coin); I
J J
(9) a golden necklace;
K K
(10) a silvery bracelet;
L L
M (11) a pair of earrings; and M
N N
(12) a golden ring.
O O
5. The total value of the Stolen Properties is around HK$22,000.
P P
Q 6. On 5 October 2021, police officers intercepted the third Q
defendant for investigation. At that time, he had a backpack with him.
R R
Upon inquiry, the third defendant revealed that he landed in Hong Kong
S illegally (Charge 4). Upon search, the third defendant was in possession S
of an octopus card but no identity documents. He was arrested.
T T
U U
4
V V
A A
B B
7. In subsequent cautioned interviews, the third defendant
C admitted that he entered Hong Kong illegally. He came to Hong Kong to C
earn money. A man in Shenzhen asked him to carry the backpack to North
D D
Point for someone. He was given HK$600 as a reward.
E E
8. On 7 October 2021, police officers saw the first and second
F F
defendants leaving Yan Hong Mansion, Mong Kok, following another man.
G They therefore intercepted the two defendants for inquiry. G
H H
9. Upon search, the first defendant was in possession of a card
I of a guesthouse and an octopus card. I
J J
10. Upon search of the second defendant, a key, an octopus card
K and some identity documents were found. Upon inquiry, the second K
defendant revealed that he landed in Hong Kong illegally (Charge 6).
L L
M 11. The two defendants were arrested. They were brought to M
Room 6 of a guesthouse (“the Guesthouse”) on 5/F in Yan Hong Mansion.
N N
O 12. In Room 6, the police found, amongst other things, the O
following items:
P P
Q (1) a brown bag containing the first defendant’s identity Q
documents, some clothes, some cash and Stolen Properties
R R
(2)-(4);
S S
(2) a black bag; and
T T
U U
5
V V
A A
B B
(3) a black backpack containing the third defendant’s identity
C documents, some cash and some clothes. C
D 13. In subsequent cautioned interviews, the first defendant D
admitted that he had landed in Hong Kong illegally (Charge 5). He came
E E
to Hong Kong by boat from Shenzhen in late September. He came to know
F the second defendant on the boat. He came to Hong Kong to work. He F
picked up the Stolen Properties (2)-(4) at 1/F of the Guesthouse.
G G
H 14. In subsequent cautioned interviews, the second defendant H
admitted that he took a fishing boat from Sha Tau Kok to Hong Kong on
I I
30 September 2021. On the boat, he acquainted with the first and third
J defendants. He came to Hong Kong to find jobs to earn a higher wage but J
had yet to find any job.
K K
L 15. Subsequent investigation revealed that CCTV of a shop near L
the building in which the Premises was situated captured the three
M M
defendants appearing in the vicinity between 3:46 p.m. and 3:56 p.m. on 2
N N
October 2021. The three defendants were captured wearing the same
O
clothes that had been seized by the police, and the second and third O
defendants were carrying the black bag and black backpack respectively,
P P
both of which were seized from Room 6 of the Guesthouse.
Q Q
16. The second and third defendants were captured entering the
R R
building in which the Premises was situated at about 3:55 p.m. and they
S left about a minute thereafter. After leaving the building, the second and S
third defendants joined the first defendant and they left together.
T T
U U
6
V V
A A
B B
17. Further cautioned interviews were conducted with the
C defendants on 8 November 2021. C
D D
18. Under caution, the first defendant admitted the brown bag
E belonged to him and he picked up Stolen Properties (2)-(4) between the 3rd E
and 4th of October 2021 outside a shoe shop in Mong Kok and then placed
F F
them in the brown bag.
G G
19. Under caution, the third defendant stated that he could not
H H
recall where he was, who he was with, what he was doing, and whether he
I had been to the Premises at the material time. He admitted he had placed I
a black backpack in a guesthouse in Mong Kok.
J J
K 20. The octopus cards found on the three defendants respectively K
were all used to take the same bus at the same time at about 4:24 p.m. on 2
L L
October 2021.
M M
21. For Charge 1, at the material time, the three defendants, as a
N N
joint enterprise, having entered as trespassers of the Premises, which was
O part of a building, stole therein the Stolen Properties. O
P P
22. For Charges 4-6, at all material times, the first to third
Q defendants respectively, having landed in Hong Kong unlawfully, Q
remained in Hong Kong without the authority of the Director of
R R
Immigration.
S S
T T
U U
7
V V
A A
B B
First defendant’s mitigation
C C
23. The first defendant is aged 43, married with three children.
D D
Prior to the arrest, he worked as a tailor in the Mainland, earning around
E RMB 4,000 to 5,000 per month. He also has to take care of his elderly E
mother. He has a clear record in Hong Kong.
F F
G 24. As a result of his arrest and detention, his wife had to take up G
work in Shenzhen in order to support the family, his two youngest children
H H
had to be sent to be cared for by his mother-in-law’s family, and his eldest
I son was left to care for the elderly mother while also studying. I
J J
25. Notwithstanding the first defendant’s belated plea to Charge
K 1, this Court was urged to grant him the maximum possible discount. K
L L
Second defendant’s mitigation
M M
26. The second defendant is aged 52. His wife left the family
N N
some years ago. Prior to the arrest, the second defendant lived with his
O daughter and his elderly mother. He worked as a carpenter in the Mainland, O
earning RMB6,000 per month. He has a clear record in Hong Kong.
P P
Q Third defendant’s mitigation Q
R R
27. The third defendant is aged 42, a divorcee with 2 daughters.
S He has to take care of his elderly mother. Prior to the arrest, he worked as S
a farmer and casual worker in construction sites in the Mainland, earning
T T
U U
8
V V
A A
B B
about RMB 2,500 per month. He committed the offences due to financial
C pressure. He has a clear record in Hong Kong. C
D D
28. All counsel for the three defendants submitted in mitigation
E that apart from the fact that Charge 1 was committed by 3 persons, there E
was no other aggravating feature in the commission of the offence. Some
F F
of the Stolen Properties with total value of around HK$1,100 were
G recovered. They also urged this Court to consider the totality principle G
when sentencing.
H H
I Sentence I
J J
Charge 1 (burglary)
K K
29. The Court of Appeal has laid down sentencing guideline for
L L
the offence of burglary. According to the guideline, the starting point for
M a single burglary of domestic premises committed by a first offender of full M
age where there are no aggravating or mitigating features is 3 years’
N N
imprisonment.
O O
30. The starting point can be adjusted upward if there are
P P
aggravating circumstances such as (1) the offence is carefully planned and
Q skillfully executed involving the use of heavy instrument or equipment; (2) Q
the offence is committed by two or more people; (3) the offence targets at
R R
substantial premises and involves substantial properties; (4) the offender is
S a professional burglar and not just an opportunist; (5) the offender has S
previous convictions, particularly previous conviction of similar nature;
T T
U U
9
V V
A A
B B
and (6) the offender commits multiple offences (see HKSAR v Cheng Wai
C Kai, CACC 338-339/2007). C
D D
31. All defendants agreed the aggravating feature of Charge 1 is
E the commission of the offence by 3 persons. Although the first defendant E
did not go up to the Premises, his presence in the vicinity clearly indicates
F F
that he was part of the joint enterprise and some of the Stolen Properties
G were in his possession. In the circumstances, I consider the usual starting G
point of 36 months should be enhanced by 3 months to reflect the
H H
aggravating feature of joint enterprise.
I I
32. The first defendant only indicated his intention to plead guilty
J J
after the case has been set down for trial. In the circumstance, he is only
K entitled to a 25% discount on the sentence. Apart from the guilty plea, K
there is no other mitigating factor justifying further reduction of the
L L
sentence. Therefore, the sentence for Charge 1 in respect of the first
M defendant is reduced to 29 months’ imprisonment. M
N N
33. For the second and third defendants, both of them indicated
O their intention to plead guilty before the case has been set down for trial. O
Each of them is entitled to the usual 1/3 discount. Apart from the guilty
P P
plea, there is no other mitigating factor justifying further reduction of the
Q sentence. Therefore, in respect of each of the second and third defendants, Q
the sentence for Charge 1 is reduced to 26 months’ imprisonment.
R R
S S
T T
U U
10
V V
A A
B B
Charges 4-6 (unlawful remaining)
C C
34. In relation to the offence of unlawful remaining, it is well
D D
settled that a sentence of 15 months’ imprisonment after a guilty plea is the
E appropriate sentence. It is also well settled that the sentence for burglary E
should run consecutively to the sentence for unlawful remaining (see
F F
HKSAR v Kei San Man & Another, CACC 246/1999 and HKSAR v Lau
G Pang [2004] 3 HKLRD 565). G
H H
35. In view of the above and given the defendants’ plea, for each
I of Charges 4-6, the sentence to be imposed after plea is 15 months’ I
imprisonment.
J J
K 36. Having considered the totality principle and the K
circumstances of each defendant, I am satisfied that 5 months of the
L L
sentence for the unlawful remaining charge can run concurrently with the
M sentence for the burglary charge. The sentence for each defendant is as M
follows.
N N
O First defendant: O
Charge 1 – 29 months’ imprisonment
P P
Charge 5 – 15 months’ imprisonment, 10 months to run
Q consecutively to Charge 1 Q
Total sentence – 39 months’ imprisonment
R R
S Second defendant: S
Charge 1 – 26 months’ imprisonment
T T
U U
11
V V
A A
B B
Charge 6 – 15 months’ imprisonment, 10 months to run
C consecutively to Charge 1 C
Total sentence – 36 months’ imprisonment
D D
E E
Third defendant:
F F
Charge 1 – 26 months’ imprisonment
G Charge 4 – 15 months’ imprisonment, 10 months to run G
consecutively to Charge 1
H H
Total sentence – 36 months’ imprisonment
I I
J J
K K
L L
M M
N N
O O
P P
Q ( Kathie Cheung ) Q
District Judge
R R
S S
T T
U U
12
V V
HKSAR v. YU YIHAN ALSO KNOWN AS YU YEEHON AND OTHERS
A A
B B
DCCC 343/2022
[2023] HKDC 532
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 343 OF 2022 E
F F
------------------------------
G G
HKSAR
H
v H
YU YIHAN ALSO KNOWN AS YU YEEHON 余义汉 (D1)
I I
YU CHANGXU 余昌旭 (D2)
J YU XIAOBING 余小兵 (D3) J
K
------------------------------ K
L L
Before: HH Judge Kathie Cheung
M
Date: 20 April 2023 M
Present: Ms. LAW Lai Ming, Karen, Public Prosecutor, for HKSAR
N N
Ms. TSANG Tsz Ching Emma, instructed by Messrs. Adrian
O Yeung & Cheng, assigned by the Director of Legal Aid for O
D1
P P
Mr. MA Ming Tak Stephen, instructed by Messrs. Augustine
Q C.Y. Tong & Co., assigned by the Director of Legal Aid for Q
D2
R R
Ms. LAI S.M. Annie, instructed by Messrs. Edward Lau
S Phoebe Ng Solicitors LLP, assigned by the Director of Legal S
Aid for D3
T T
U U
V V
A A
B B
Offences: [1] Burglary (入屋犯法罪)- D1, D2 & D3
C [2] Going equipped for stealing (外出時備有偷竊用的物 C
品)- D3
D D
[3] Going equipped for stealing (外出時備有偷竊用的物
E E
品)- D2
F [4] Remaining in Hong Kong without the authority of the F
Director of Immigration after having landed unlawfully in
G G
Hong Kong (在香港非法入境後未得入境事務處處長授權
H H
而留在香港)- D3
I [5] Remaining in Hong Kong without the authority of the I
Director of Immigration after having landed unlawfully in
J J
Hong Kong (在香港非法入境後未得入境事務處處長授權
K 而留在香港)- D1 K
[6] Remaining in Hong Kong without the authority of the
L L
Director of Immigration after having landed unlawfully in
M M
Hong Kong (在香港非法入境後未得入境事務處處長授權
N 而留在香港)- D2 N
O O
P P
---------------------------------------
Q Q
REASONS FOR SENTENCE
R --------------------------------------- R
S S
T 1. All three defendants pleaded guilty to one count of burglary, T
contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210
U U
2
V V
A A
B B
(Charge 1). Each of them pleaded guilty to one count of remaining in Hong
C Kong without the authority of the Director of Immigration after having C
landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the
D D
Immigration Ordinance, Cap. 115 (Charges 4-6). Each of the second and
E third defendants pleaded not guilty to the offence of going equipped for E
stealing, contrary to section 27(1) of the Theft Ordinance, Cap. 210
F F
(Charges 2-3). Upon application by the prosecution, Charges 2-3 are to be
G left on court file, and not to be proceeded with without the court’s leave. G
H H
Facts
I I
2. At about 3:45 p.m. on 2 October 2021, Ms. Ng Lai Chun and
J J
her children left their home at the Front Portion, 1st Floor, 133 Tai Nan
K Street, Mong Kok (“the Premises”). Before they left, Ms. Ng ensured that K
the metal gate and wooden door of the Premises had been locked securely.
L L
M 3. At about 8:40 p.m. on the same day, when Ms. Ng returned M
home with her family, they found the metal gate and wooden door prized
N N
open, the locks damaged, and the door left ajar. Two bedrooms had been
O ransacked. O
P P
4. Ms. Ng found the following properties missing (“the Stolen
Q Properties”): Q
R R
(1) cash of HK$15,000;
S S
(2) a silver necklace with heart-shaped pendant;
T T
U U
3
V V
A A
B B
(3) a blue butterfly-shaped brooch;
C C
(4) a golden bracelet;
D D
E (5) a red box, containing items (6)-(8) below; E
F F
(6) a key to a safe;
G G
(7) a silver ring;
H H
I (8) seven coins (six 1997 edition coins and a 5-cent coin); I
J J
(9) a golden necklace;
K K
(10) a silvery bracelet;
L L
M (11) a pair of earrings; and M
N N
(12) a golden ring.
O O
5. The total value of the Stolen Properties is around HK$22,000.
P P
Q 6. On 5 October 2021, police officers intercepted the third Q
defendant for investigation. At that time, he had a backpack with him.
R R
Upon inquiry, the third defendant revealed that he landed in Hong Kong
S illegally (Charge 4). Upon search, the third defendant was in possession S
of an octopus card but no identity documents. He was arrested.
T T
U U
4
V V
A A
B B
7. In subsequent cautioned interviews, the third defendant
C admitted that he entered Hong Kong illegally. He came to Hong Kong to C
earn money. A man in Shenzhen asked him to carry the backpack to North
D D
Point for someone. He was given HK$600 as a reward.
E E
8. On 7 October 2021, police officers saw the first and second
F F
defendants leaving Yan Hong Mansion, Mong Kok, following another man.
G They therefore intercepted the two defendants for inquiry. G
H H
9. Upon search, the first defendant was in possession of a card
I of a guesthouse and an octopus card. I
J J
10. Upon search of the second defendant, a key, an octopus card
K and some identity documents were found. Upon inquiry, the second K
defendant revealed that he landed in Hong Kong illegally (Charge 6).
L L
M 11. The two defendants were arrested. They were brought to M
Room 6 of a guesthouse (“the Guesthouse”) on 5/F in Yan Hong Mansion.
N N
O 12. In Room 6, the police found, amongst other things, the O
following items:
P P
Q (1) a brown bag containing the first defendant’s identity Q
documents, some clothes, some cash and Stolen Properties
R R
(2)-(4);
S S
(2) a black bag; and
T T
U U
5
V V
A A
B B
(3) a black backpack containing the third defendant’s identity
C documents, some cash and some clothes. C
D 13. In subsequent cautioned interviews, the first defendant D
admitted that he had landed in Hong Kong illegally (Charge 5). He came
E E
to Hong Kong by boat from Shenzhen in late September. He came to know
F the second defendant on the boat. He came to Hong Kong to work. He F
picked up the Stolen Properties (2)-(4) at 1/F of the Guesthouse.
G G
H 14. In subsequent cautioned interviews, the second defendant H
admitted that he took a fishing boat from Sha Tau Kok to Hong Kong on
I I
30 September 2021. On the boat, he acquainted with the first and third
J defendants. He came to Hong Kong to find jobs to earn a higher wage but J
had yet to find any job.
K K
L 15. Subsequent investigation revealed that CCTV of a shop near L
the building in which the Premises was situated captured the three
M M
defendants appearing in the vicinity between 3:46 p.m. and 3:56 p.m. on 2
N N
October 2021. The three defendants were captured wearing the same
O
clothes that had been seized by the police, and the second and third O
defendants were carrying the black bag and black backpack respectively,
P P
both of which were seized from Room 6 of the Guesthouse.
Q Q
16. The second and third defendants were captured entering the
R R
building in which the Premises was situated at about 3:55 p.m. and they
S left about a minute thereafter. After leaving the building, the second and S
third defendants joined the first defendant and they left together.
T T
U U
6
V V
A A
B B
17. Further cautioned interviews were conducted with the
C defendants on 8 November 2021. C
D D
18. Under caution, the first defendant admitted the brown bag
E belonged to him and he picked up Stolen Properties (2)-(4) between the 3rd E
and 4th of October 2021 outside a shoe shop in Mong Kok and then placed
F F
them in the brown bag.
G G
19. Under caution, the third defendant stated that he could not
H H
recall where he was, who he was with, what he was doing, and whether he
I had been to the Premises at the material time. He admitted he had placed I
a black backpack in a guesthouse in Mong Kok.
J J
K 20. The octopus cards found on the three defendants respectively K
were all used to take the same bus at the same time at about 4:24 p.m. on 2
L L
October 2021.
M M
21. For Charge 1, at the material time, the three defendants, as a
N N
joint enterprise, having entered as trespassers of the Premises, which was
O part of a building, stole therein the Stolen Properties. O
P P
22. For Charges 4-6, at all material times, the first to third
Q defendants respectively, having landed in Hong Kong unlawfully, Q
remained in Hong Kong without the authority of the Director of
R R
Immigration.
S S
T T
U U
7
V V
A A
B B
First defendant’s mitigation
C C
23. The first defendant is aged 43, married with three children.
D D
Prior to the arrest, he worked as a tailor in the Mainland, earning around
E RMB 4,000 to 5,000 per month. He also has to take care of his elderly E
mother. He has a clear record in Hong Kong.
F F
G 24. As a result of his arrest and detention, his wife had to take up G
work in Shenzhen in order to support the family, his two youngest children
H H
had to be sent to be cared for by his mother-in-law’s family, and his eldest
I son was left to care for the elderly mother while also studying. I
J J
25. Notwithstanding the first defendant’s belated plea to Charge
K 1, this Court was urged to grant him the maximum possible discount. K
L L
Second defendant’s mitigation
M M
26. The second defendant is aged 52. His wife left the family
N N
some years ago. Prior to the arrest, the second defendant lived with his
O daughter and his elderly mother. He worked as a carpenter in the Mainland, O
earning RMB6,000 per month. He has a clear record in Hong Kong.
P P
Q Third defendant’s mitigation Q
R R
27. The third defendant is aged 42, a divorcee with 2 daughters.
S He has to take care of his elderly mother. Prior to the arrest, he worked as S
a farmer and casual worker in construction sites in the Mainland, earning
T T
U U
8
V V
A A
B B
about RMB 2,500 per month. He committed the offences due to financial
C pressure. He has a clear record in Hong Kong. C
D D
28. All counsel for the three defendants submitted in mitigation
E that apart from the fact that Charge 1 was committed by 3 persons, there E
was no other aggravating feature in the commission of the offence. Some
F F
of the Stolen Properties with total value of around HK$1,100 were
G recovered. They also urged this Court to consider the totality principle G
when sentencing.
H H
I Sentence I
J J
Charge 1 (burglary)
K K
29. The Court of Appeal has laid down sentencing guideline for
L L
the offence of burglary. According to the guideline, the starting point for
M a single burglary of domestic premises committed by a first offender of full M
age where there are no aggravating or mitigating features is 3 years’
N N
imprisonment.
O O
30. The starting point can be adjusted upward if there are
P P
aggravating circumstances such as (1) the offence is carefully planned and
Q skillfully executed involving the use of heavy instrument or equipment; (2) Q
the offence is committed by two or more people; (3) the offence targets at
R R
substantial premises and involves substantial properties; (4) the offender is
S a professional burglar and not just an opportunist; (5) the offender has S
previous convictions, particularly previous conviction of similar nature;
T T
U U
9
V V
A A
B B
and (6) the offender commits multiple offences (see HKSAR v Cheng Wai
C Kai, CACC 338-339/2007). C
D D
31. All defendants agreed the aggravating feature of Charge 1 is
E the commission of the offence by 3 persons. Although the first defendant E
did not go up to the Premises, his presence in the vicinity clearly indicates
F F
that he was part of the joint enterprise and some of the Stolen Properties
G were in his possession. In the circumstances, I consider the usual starting G
point of 36 months should be enhanced by 3 months to reflect the
H H
aggravating feature of joint enterprise.
I I
32. The first defendant only indicated his intention to plead guilty
J J
after the case has been set down for trial. In the circumstance, he is only
K entitled to a 25% discount on the sentence. Apart from the guilty plea, K
there is no other mitigating factor justifying further reduction of the
L L
sentence. Therefore, the sentence for Charge 1 in respect of the first
M defendant is reduced to 29 months’ imprisonment. M
N N
33. For the second and third defendants, both of them indicated
O their intention to plead guilty before the case has been set down for trial. O
Each of them is entitled to the usual 1/3 discount. Apart from the guilty
P P
plea, there is no other mitigating factor justifying further reduction of the
Q sentence. Therefore, in respect of each of the second and third defendants, Q
the sentence for Charge 1 is reduced to 26 months’ imprisonment.
R R
S S
T T
U U
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V V
A A
B B
Charges 4-6 (unlawful remaining)
C C
34. In relation to the offence of unlawful remaining, it is well
D D
settled that a sentence of 15 months’ imprisonment after a guilty plea is the
E appropriate sentence. It is also well settled that the sentence for burglary E
should run consecutively to the sentence for unlawful remaining (see
F F
HKSAR v Kei San Man & Another, CACC 246/1999 and HKSAR v Lau
G Pang [2004] 3 HKLRD 565). G
H H
35. In view of the above and given the defendants’ plea, for each
I of Charges 4-6, the sentence to be imposed after plea is 15 months’ I
imprisonment.
J J
K 36. Having considered the totality principle and the K
circumstances of each defendant, I am satisfied that 5 months of the
L L
sentence for the unlawful remaining charge can run concurrently with the
M sentence for the burglary charge. The sentence for each defendant is as M
follows.
N N
O First defendant: O
Charge 1 – 29 months’ imprisonment
P P
Charge 5 – 15 months’ imprisonment, 10 months to run
Q consecutively to Charge 1 Q
Total sentence – 39 months’ imprisonment
R R
S Second defendant: S
Charge 1 – 26 months’ imprisonment
T T
U U
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V V
A A
B B
Charge 6 – 15 months’ imprisonment, 10 months to run
C consecutively to Charge 1 C
Total sentence – 36 months’ imprisonment
D D
E E
Third defendant:
F F
Charge 1 – 26 months’ imprisonment
G Charge 4 – 15 months’ imprisonment, 10 months to run G
consecutively to Charge 1
H H
Total sentence – 36 months’ imprisonment
I I
J J
K K
L L
M M
N N
O O
P P
Q ( Kathie Cheung ) Q
District Judge
R R
S S
T T
U U
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V V