區域法院（刑事）Deputy District Judge David Cheung17/5/2021[2021] HKDC 606
合併案件：DCCC70/2006DCCC231/2000
DCCC70/2006
A A
B B
DCCC 231/2000 & 70/2006 (Consolidated)
C [2021] HKDC 606 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 231 OF 2000 & 70 OF 2006
F F
G ---------------------------- G
HKSAR
H H
v
I YUEN SAI WA (D1) I
----------------------------
J J
K Before: Deputy District Judge David Cheung in Court K
Date: 18 May 2021
L L
Present: Mr Stephen Fong, Counsel on fiat, for HKSAR/Director of
M Public Prosecutions M
Mr Jeffrey Lai, instructed by T K Tsui & Co, assigned by
N N
the Director of Legal Aid, for the 1st defendant
O Offences: [2] Making false report of commission of offence（虛報有 O
P
人犯罪） - D1 P
[6] Failing to surrender to custody without reasonable cause
Q Q
（無合理因由而沒有按照法庭的指定歸押） - D1
R R
--------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------- T
U U
V V
-2-
A A
B B
1. The defendant, Yuen Sai Wa stands before me convicted on
C his own pleas of the following 2 charges:- C
D D
(1) A charge of making false report of commission of
E offence, namely robbery (Charge 2); and E
F F
(2) A charge of failing to surrender to custody without
G reasonable cause (Charge 6). G
H H
2. The facts, as admitted by the defendant, reveal that he had
I been employed by Asin Base Limited (hereinafter called “the company”) I
as a carrier.
J J
K 3. At about 3:00 pm on 10 December 1999, Mr Lo hired Mr Yu K
to help remove some notebook computers. At about 3:45 pm, Mr Lo led
L L
Mr Yu to the company.
M M
4. On arriving at the entrance to the company, Mr Lo rang the
N N
doorbell. The defendant opened the door and let Mr Lo and Mr Yu in. Mr
O Lo told the defendant that Mr Yu was his friend and could be trusted for O
removing the 27 sets of notebook computers inside the company.
P P
Q 5. Mr Yu then removed all the notebook computers with the Q
trolleys from the company as instructed, without any untoward event, and
R R
Mr Lo drove Mr Yu together with the notebook computers to leave the
S company. S
T T
U U
V V
-3-
A A
B B
6. At about 4:40 pm, the defendant went to the office of Mr Yung
C asking Mr Yung to let him use the telephone to make a report to police. C
D D
7. At about 4:42 pm, the defendant made a report to the police
E by phone. Officer Wan of the police received a call from the defendant E
who claimed that he and together with the other persons had just been
F F
robbed by four unknown men of some notebook computers inside the
G company, and one of the robbers was armed with a knife. G
H H
8. At about 10 pm, the defendant told DSPC19951 that:-
I I
(a) He and together with the other persons were robbed by
J J
four unknown men inside the company at about 4 pm
K the same day; K
L L
(b) Each of the four robbers were wearing caps and one
M was armed with a knife; M
N N
(c) He was assaulted by the robbers and was tied up with
O iron wire and gagged with a towel by them; O
P P
(d) The robbers ransacked the company and took away 27
Q sets of notebook computers, two trolleys and cash of Q
about HK$100,000.
R R
S 9. On 13 December 1999, the defendant was arrested. The S
defendant was later charged to the court, he was released on court bail for
T T
trial scheduled on 18 May 2000. The defendant failed to report to the
U U
V V
-4-
A A
B B
police station on 11 April 2000. Warrant of Arrest was issued on 19 April
C 2000, it was executed on 27 November 2020 when the defendant returned C
to Hong Kong from Mainland China.
D D
E 10. Upon caution for “failing to surrender to custody without E
reasonable cause”, the defendant said he was frightened at the material time
F F
so he went back to Mainland China for hiding. He now returns to Hong
G Kong to face the legal proceedings（“我當時因為好驚所以先返咗大陸 G
呢埋，我依家返嚟香港都係想接受返香港嘅法律程序 ”）. Upon
H H
subsequent caution, the defendant confirmed his admissions, and further
I I
explained that he fled to Mainland China via Sha Tau Kok. He knew that
J
he breached court order. After he served his terms in Mainland China, he J
returned to Hong Kong.
K K
L
Criminal records and background of the defendant L
M M
11. The defendant is now aged 57 and was divorced since 1994.
N He was born in Hong Kong and was educated up to Secondary 5. Prior to N
his arrest, he had served his prison time in Mainland China since 2010. He
O O
is still in touch with his mother, his nephew and his younger brother.
P P
12. The defendant has one previous criminal conviction, namely
Q Q
Attempt robbery in 1996 for which he was sentenced to 4 years and 6
R months’ imprisonment. R
S S
T T
U U
V V
-5-
A A
B B
Mitigation
C C
13. In mitigation, Mr Lai submitted three mitigating letters to the
D D
court. These letters were written by the defendant, his mother and his
E nephew respectively. In gist, Mr Lai submitted that the defendant is deeply E
remorseful for his past acts and asks for leniency. Mr Lai also submitted a
F F
copy of the “certificate of release” for the court’s reference.
G G
14. Mr Lai also submitted that the defendant understands
H H
immediate custodial sentence would be the only option. After serving a
I lengthy sentence in Mainland China, he is well prepared to face the legal I
consequence in Hong Kong and therefore, immediately after his release in
J J
Mainland China, he chose to surrender himself by coming back to Hong
K Kong voluntarily. K
L L
15. Mr Lai stated that the defendant had no knowledge of what
M charges awaited him at that juncture, yet he would still embrace any M
sentence the court would pass on him.
N N
O 16. Mr Lai also urged the court to consider timely guilty pleas by O
the defendant and the totality principle when passing the sentence.
P P
Q Sentencing considerations Q
R R
17. The maximum sentence for the commission of the offence
S under section 64(a) of the Police Force Ordinance, Cap 232 is punishable S
to a fine at level 1 and to imprisonment for 6 months.
T T
U U
V V
-6-
A A
B B
18. I have taken into account of the nature of the offence and all
C matter urged on the defendant’s behalf by Mr Lai. For the 2nd charge, I can C
see that much time and resources of the police must have been wasted.
D D
E 19. I am of the view that a starting point of 13 weeks’ E
imprisonment is appropriate.
F F
G 20. The defendant failed to attend court on 18 May 2000. A G
defendant who absconds can expect to be given a discount of less than one-
H H
third when he pleads guilty and that he will be additionally punished for
I the offence of failing to surrender to court1. I
J J
21. The usual range of discount afforded to a defendant who has
K absconded is about 20% to 25%. K
L L
22. The defendant was re-arrested over twenty years later on 27
M November 2020 when the defendant returned to Hong Kong from M
Mainland China.
N N
O 23. I am satisfied that a discount of about 20% is appropriate and O
thereby reducing the sentence to 10 weeks’ imprisonment after rounding
P P
up adjustment.
Q Q
24. For the 6th charge, the sentence for failing to surrender to court
R R
partly depends upon how long after failing to surrender a defendant is re-
S S
T T
1
See HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 at §8.
U U
V V
-7-
A A
B B
arrested and brought to court. Generally, the longer the period the longer
C the sentence. C
D D
25. Taking into account that the defendant was arrested over
E twenty years after failing to attend the police station and the court, I am E
satisfied that a starting point of 9 months’ imprisonment is appropriate.
F F
G 26. The fact that the defendant had served a prison term in G
Mainland China since 22 April 2010 will not affect the culpability of the
H H
defendant’s absconding and failing to attend the trial on 18 May 2000.
I I
27. My view is that even using April 2010 as the cut off point, the
J J
length of absconding is long enough for me to justify a starting point of 9
K months. K
L L
28. Giving the defendant full credit for his plea of guilty reduces
M the sentence to 6 months’ imprisonment for the 6th charge. M
N N
Totality
O O
29. Failing to surrender to court is a wholly distinct and separate
P P
offence from the offence of making false report of commission of offence.
Q Q
30. In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting
R R
the submission that the appellant had been punished twice for absconding,
S stated that by absconding the appellant had committed a fresh offence and S
had to be punished separately2.
T T
2
CACC 71/2007.
U U
V V
-8-
A A
B B
C 31. A consecutive sentence is therefore appropriate subject to C
3
consideration of totality of sentence . I am satisfied that a wholly
D D
consecutive sentence is appropriate making a total sentence of 6 months
E and 10 weeks’ imprisonment, which I am satisfied properly reflects the E
defendant’s overall criminal culpability on the two charges.
F F
G Sentence G
H H
32. The defendant is convicted and sentenced as follows:-
I I
Charge 2 – 10 weeks’ imprisonment and
J J
K Charge 6 – 6 months’ imprisonment consecutive to charge 2. K
L L
33. The total sentence to be served by the defendant is 6 months
M and 10 weeks’ imprisonment. M
N N
O ( David Cheung ) O
Deputy District Judge
P P
Q Q
R R
S S
T T
3
See HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 at §47, 58 & 92.
U U
V V
A A
B B
DCCC 231/2000 & 70/2006 (Consolidated)
C [2021] HKDC 606 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 231 OF 2000 & 70 OF 2006
F F
G ---------------------------- G
HKSAR
H H
v
I YUEN SAI WA (D1) I
----------------------------
J J
K Before: Deputy District Judge David Cheung in Court K
Date: 18 May 2021
L L
Present: Mr Stephen Fong, Counsel on fiat, for HKSAR/Director of
M Public Prosecutions M
Mr Jeffrey Lai, instructed by T K Tsui & Co, assigned by
N N
the Director of Legal Aid, for the 1st defendant
O Offences: [2] Making false report of commission of offence（虛報有 O
P
人犯罪） - D1 P
[6] Failing to surrender to custody without reasonable cause
Q Q
（無合理因由而沒有按照法庭的指定歸押） - D1
R R
--------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------- T
U U
V V
-2-
A A
B B
1. The defendant, Yuen Sai Wa stands before me convicted on
C his own pleas of the following 2 charges:- C
D D
(1) A charge of making false report of commission of
E offence, namely robbery (Charge 2); and E
F F
(2) A charge of failing to surrender to custody without
G reasonable cause (Charge 6). G
H H
2. The facts, as admitted by the defendant, reveal that he had
I been employed by Asin Base Limited (hereinafter called “the company”) I
as a carrier.
J J
K 3. At about 3:00 pm on 10 December 1999, Mr Lo hired Mr Yu K
to help remove some notebook computers. At about 3:45 pm, Mr Lo led
L L
Mr Yu to the company.
M M
4. On arriving at the entrance to the company, Mr Lo rang the
N N
doorbell. The defendant opened the door and let Mr Lo and Mr Yu in. Mr
O Lo told the defendant that Mr Yu was his friend and could be trusted for O
removing the 27 sets of notebook computers inside the company.
P P
Q 5. Mr Yu then removed all the notebook computers with the Q
trolleys from the company as instructed, without any untoward event, and
R R
Mr Lo drove Mr Yu together with the notebook computers to leave the
S company. S
T T
U U
V V
-3-
A A
B B
6. At about 4:40 pm, the defendant went to the office of Mr Yung
C asking Mr Yung to let him use the telephone to make a report to police. C
D D
7. At about 4:42 pm, the defendant made a report to the police
E by phone. Officer Wan of the police received a call from the defendant E
who claimed that he and together with the other persons had just been
F F
robbed by four unknown men of some notebook computers inside the
G company, and one of the robbers was armed with a knife. G
H H
8. At about 10 pm, the defendant told DSPC19951 that:-
I I
(a) He and together with the other persons were robbed by
J J
four unknown men inside the company at about 4 pm
K the same day; K
L L
(b) Each of the four robbers were wearing caps and one
M was armed with a knife; M
N N
(c) He was assaulted by the robbers and was tied up with
O iron wire and gagged with a towel by them; O
P P
(d) The robbers ransacked the company and took away 27
Q sets of notebook computers, two trolleys and cash of Q
about HK$100,000.
R R
S 9. On 13 December 1999, the defendant was arrested. The S
defendant was later charged to the court, he was released on court bail for
T T
trial scheduled on 18 May 2000. The defendant failed to report to the
U U
V V
-4-
A A
B B
police station on 11 April 2000. Warrant of Arrest was issued on 19 April
C 2000, it was executed on 27 November 2020 when the defendant returned C
to Hong Kong from Mainland China.
D D
E 10. Upon caution for “failing to surrender to custody without E
reasonable cause”, the defendant said he was frightened at the material time
F F
so he went back to Mainland China for hiding. He now returns to Hong
G Kong to face the legal proceedings（“我當時因為好驚所以先返咗大陸 G
呢埋，我依家返嚟香港都係想接受返香港嘅法律程序 ”）. Upon
H H
subsequent caution, the defendant confirmed his admissions, and further
I I
explained that he fled to Mainland China via Sha Tau Kok. He knew that
J
he breached court order. After he served his terms in Mainland China, he J
returned to Hong Kong.
K K
L
Criminal records and background of the defendant L
M M
11. The defendant is now aged 57 and was divorced since 1994.
N He was born in Hong Kong and was educated up to Secondary 5. Prior to N
his arrest, he had served his prison time in Mainland China since 2010. He
O O
is still in touch with his mother, his nephew and his younger brother.
P P
12. The defendant has one previous criminal conviction, namely
Q Q
Attempt robbery in 1996 for which he was sentenced to 4 years and 6
R months’ imprisonment. R
S S
T T
U U
V V
-5-
A A
B B
Mitigation
C C
13. In mitigation, Mr Lai submitted three mitigating letters to the
D D
court. These letters were written by the defendant, his mother and his
E nephew respectively. In gist, Mr Lai submitted that the defendant is deeply E
remorseful for his past acts and asks for leniency. Mr Lai also submitted a
F F
copy of the “certificate of release” for the court’s reference.
G G
14. Mr Lai also submitted that the defendant understands
H H
immediate custodial sentence would be the only option. After serving a
I lengthy sentence in Mainland China, he is well prepared to face the legal I
consequence in Hong Kong and therefore, immediately after his release in
J J
Mainland China, he chose to surrender himself by coming back to Hong
K Kong voluntarily. K
L L
15. Mr Lai stated that the defendant had no knowledge of what
M charges awaited him at that juncture, yet he would still embrace any M
sentence the court would pass on him.
N N
O 16. Mr Lai also urged the court to consider timely guilty pleas by O
the defendant and the totality principle when passing the sentence.
P P
Q Sentencing considerations Q
R R
17. The maximum sentence for the commission of the offence
S under section 64(a) of the Police Force Ordinance, Cap 232 is punishable S
to a fine at level 1 and to imprisonment for 6 months.
T T
U U
V V
-6-
A A
B B
18. I have taken into account of the nature of the offence and all
C matter urged on the defendant’s behalf by Mr Lai. For the 2nd charge, I can C
see that much time and resources of the police must have been wasted.
D D
E 19. I am of the view that a starting point of 13 weeks’ E
imprisonment is appropriate.
F F
G 20. The defendant failed to attend court on 18 May 2000. A G
defendant who absconds can expect to be given a discount of less than one-
H H
third when he pleads guilty and that he will be additionally punished for
I the offence of failing to surrender to court1. I
J J
21. The usual range of discount afforded to a defendant who has
K absconded is about 20% to 25%. K
L L
22. The defendant was re-arrested over twenty years later on 27
M November 2020 when the defendant returned to Hong Kong from M
Mainland China.
N N
O 23. I am satisfied that a discount of about 20% is appropriate and O
thereby reducing the sentence to 10 weeks’ imprisonment after rounding
P P
up adjustment.
Q Q
24. For the 6th charge, the sentence for failing to surrender to court
R R
partly depends upon how long after failing to surrender a defendant is re-
S S
T T
1
See HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 at §8.
U U
V V
-7-
A A
B B
arrested and brought to court. Generally, the longer the period the longer
C the sentence. C
D D
25. Taking into account that the defendant was arrested over
E twenty years after failing to attend the police station and the court, I am E
satisfied that a starting point of 9 months’ imprisonment is appropriate.
F F
G 26. The fact that the defendant had served a prison term in G
Mainland China since 22 April 2010 will not affect the culpability of the
H H
defendant’s absconding and failing to attend the trial on 18 May 2000.
I I
27. My view is that even using April 2010 as the cut off point, the
J J
length of absconding is long enough for me to justify a starting point of 9
K months. K
L L
28. Giving the defendant full credit for his plea of guilty reduces
M the sentence to 6 months’ imprisonment for the 6th charge. M
N N
Totality
O O
29. Failing to surrender to court is a wholly distinct and separate
P P
offence from the offence of making false report of commission of offence.
Q Q
30. In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting
R R
the submission that the appellant had been punished twice for absconding,
S stated that by absconding the appellant had committed a fresh offence and S
had to be punished separately2.
T T
2
CACC 71/2007.
U U
V V
-8-
A A
B B
C 31. A consecutive sentence is therefore appropriate subject to C
3
consideration of totality of sentence . I am satisfied that a wholly
D D
consecutive sentence is appropriate making a total sentence of 6 months
E and 10 weeks’ imprisonment, which I am satisfied properly reflects the E
defendant’s overall criminal culpability on the two charges.
F F
G Sentence G
H H
32. The defendant is convicted and sentenced as follows:-
I I
Charge 2 – 10 weeks’ imprisonment and
J J
K Charge 6 – 6 months’ imprisonment consecutive to charge 2. K
L L
33. The total sentence to be served by the defendant is 6 months
M and 10 weeks’ imprisonment. M
N N
O ( David Cheung ) O
Deputy District Judge
P P
Q Q
R R
S S
T T
3
See HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 at §47, 58 & 92.
U U
V V