A A
B B
DCCC 607/2021
C [2022] HKDC 124 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 607 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I WEI YONGZHUANG I
----------------------------
J J
K Before: His Honour Judge Tam K
Date: 4 February 2022
L L
Present: Mr Ng Simon K C, Counsel on fiat, for HKSAR
M Mr Wong Hing Wai, Newman, instructed by Patrick Chu, M
Conti Wong Lawyers LLP, assigned by the Director of Legal
N N
Aid, for the defendant
O Offence(s): [1] Burglary (入屋犯法罪) O
P
[2] Possession of arms without a licence (無牌管有槍械) P
[3] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
而留在香港)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Wei pleaded guilty before me to 3 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Burglary, contrary to section 11(1)(b) and (4) of G
the Theft Ordinance, Cap 210. Particulars are that he, on 13 December
H H
2020, in Hong Kong, having entered as a trespasser part of a building
I known as Ground Floor to 2nd Floor, Unit A1, Vista Stanley, No 20 Stanley I
Village Road, Stanley, stole therein two watches, cash of $2,000 Hong
J J
Kong currency, cash of $1,000 United States currency, cash of $300
K Australia currency and cash of GBP200. K
L L
3. Charge 2 is Possession of arms without a licence, contrary to
M section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. M
Particulars are that he, on 14 December 2020, outside the entrance of the
N N
Cross-Harbour Tunnel, Wan Chai, in Hong Kong, had in his possession
O arms, namely one can of pepper spray, without a licence. O
P P
4. Charge 3 is Remaining in Hong Kong without the authority of
Q the Director of Immigration after having landed unlawfully in Hong Kong, Q
contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.
R R
Particulars are that he, on 14 December 2020, having landed in Hong Kong
S unlawfully, remained in Hong Kong without the authority of the Director S
of Immigration.
T T
U U
V V
-3-
A A
B B
Facts admitted by Mr Wei
C C
5. PW1 and his family resided in G/F to 2/F of a house on
D D
Stanley Village Road.
E E
6. On 13 December, at about 10 am, PW1 and his wife left their
F F
home. Their son also left at about 12:15 pm. When PW1 returned at about
G 7:30 pm, he found the window at the G/F living room was broken. His G
home had been ransacked.
H H
I 7. The following items were missing:- I
J J
(a) Two Rolex watches worth a total of $150,000;
K (b) Cash of HK$2,000; K
(c) Cash of USD1,000;
L L
(d) Cash of Australian $300; and
M (e) Cash of GBP200. M
N N
8. At about 4:12 am on the next day, the police intercepted a taxi
O outside the entrance of the Cross-Harbour Tunnel in Wan Chai. Mr Wei O
and another man were in the rear seat.
P P
Q 9. A detective constable PW3 requested Mr Wei to produce his Q
identity card. Mr Wei replied that he did not have one. Upon search, the
R R
following items were found in the left front pocket of Mr Wei’s pants:-
S S
(a) A can of pepper spray;
T T
(b) Cash of USD200;
U U
V V
-4-
A A
B B
(c) Cash of Australian $335;
C (d) Cash of GBP100; C
(e) Cash of RMB102; and
D D
(f) Cash of THB960.
E E
10. The following items were found in Mr Wei’s backpack:-
F F
G (a) A crowbar; G
(b) Two Rolex watches later identified by PW1 to be his
H H
own;
I (c) A glass breaker; I
(d) A torch; and
J J
(e) A pair of gloves.
K K
11. PW3 arrested Mr Wei for the offences of “Remaining in Hong
L L
Kong without the authority of the Director of Immigration”, “Possession
M of arms without a licence” and Burglary. M
N N
12. Cash of HK$20 was also found in the right back pocket of
O Mr Wei’s pants. O
P P
13. During a cautioned VRI conducted on 15 December 2020,
Q Mr Wei stated:- Q
R R
(a) A Vietnamese man brought him to Hong Kong by boat
S from Shenzhen 2 to 3 days ago; S
T T
U U
V V
-5-
A A
B B
(b) The pepper spray was to be used to protect himself from
C wild animals; C
D (c) He had never used the pepper spray; and D
E (d) He entered Hong Kong without any permit. E
F F
14. Mr Wei now admits that he entered PW1’s home as a
G G
trespasser and stole therein; that he possessed the can of pepper spray
H
without a licence; and that he having landed in Hong Kong unlawfully, H
remained without the authority of the Director of Immigration.
I I
J Criminal record J
K K
15. Mr Wei has 5 previous convictions of burglary all sentenced
L together in 2015. On that occasion, Mr Wei, apart from being ordered to L
pay one sum of $2,000 compensation to the victims, received concurrent
M M
prison terms of 25 months after plea for each offence.
N N
Antecedents
O O
P 16. Mr Wei is aged 33 (32 at the time of the offences), a Mainland P
resident and educated to secondary level there. He was a factory worker.
Q Q
He is married and lived with his wife in Guangxi.
R R
Mitigation
S S
T 17. Mr Newman Wong of counsel assigned by the Director of T
Legal Aid mitigated on behalf of Mr Wei.
U U
V V
-6-
A A
B B
C 18. The following is a summary of the mitigation submissions. C
D D
19. The premises were burgled when vacant so no one was
E alarmed. Two Rolex watches and part of the stolen cash were recovered. E
The pepper spray was for the purpose of self-protection against wild
F F
animals like boars as he, being an illegal immigrant, was expecting to live
G in the wild. G
H H
20. The normal starting point for domestic premises burglary is
I one of 3 years. As Mr Wei has entered HK as an illegal immigrant and has I
previous convictions for offences of an identical nature, it is accepted that
J J
the court is entitled to take a higher starting point: HKSAR v Song Jianhua,
K CACC 362/2006. K
L L
21. For the 2nd charge, ie possession of pepper spray, there is no
M sentencing guideline. In HKSAR v Chau Lap Pui [2007] 2 HKC 342, a M
starting point of 6 months’ imprisonment was adopted on appeal.
N N
O 22. For the 3rd charge, the unlawful remaining charge, a O
15 months’ term has been approved for defendants after a guilty plea: R v
P P
So Man King & Ors [1989] 1 HKLR 142.
Q Q
23. The main factor for mitigation is Mr Wei’s guilty pleas.
R R
S 24. As the offences are separate or unrelated in nature, Mr Wong S
is not in a position to ask for wholly concurrent sentences on behalf of
T T
Mr Wei. However, Mr Wong submits that after considering totality, the
U U
V V
-7-
A A
B B
court may still order partially concurrent sentences. Mr Wong reminded
C the court that in HKSAR v Wong Tak Po, HCMA 914/2002, Deputy Judge C
Line (as he then was) considered that 7 months of the 15 months’ term for
D D
the unlawful remaining should be ordered to run concurrently with the
E terms of two robbery charges. E
F F
25. Lastly, Mr Wong submitted a mitigation letter written in
G Chinese by Mr Wei himself. The contents are generally that Mr Wei G
committed the offences for economic reasons resulting from his
H H
grandfather’s medical issues, family expenses and Covid-19; that Mr Wei
I is now regretful and promises never to re-offend; he asks for a lenient I
sentence.
J J
K Sentence K
L L
26. I generally accept Mr Wong’s submissions regarding the
M starting point and sentence after plea, as the case may be, of the 3 offences. M
N N
For Charge 1, I will adopt a starting point of 3 years 6 months bearing in
O mind the aggravating factors identified by Mr Wong. O
P P
27. For Charge 2, I will adopt a starting point of 6 months.
Q Q
28. For Charge 3, I will adopt a sentence after plea of 15 months’
R R
imprisonment.
S S
29. Mr Wei pleaded guilty in good time and he shall enjoy a
T T
sentencing discount of 1/3 in respect of Charges 1 and 2.
U U
V V
-8-
A A
B B
C 30. The three offences were completely disparate in terms of their C
nature and ought, subject only to totality which I shall consider, to attract
D D
wholly consecutive sentences.
E E
31. The following are the sentences that I shall impose.
F F
G (Mr Wei, please stand) G
H H
32. For Charge 1, Mr Wei is to go to prison for 28 months.
I I
33. For Charge 2, he is to go to prison for 4 months.
J J
K 34. For Charge 3, he is to go to prison for 15 months. K
L L
35. I order that the sentence on Charge 2 is to run wholly
M consecutively to that on Charge 1; and that 8 months of the sentence on M
Charge 3 are to run consecutively to the sentences on Charges 1 and 2. The
N N
resulting aggregate sentence is therefore 40 months’ imprisonment.
O O
P P
Q Q
R R
( Isaac Tam )
S District Judge S
T T
U U
V V
A A
B B
DCCC 607/2021
C [2022] HKDC 124 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 607 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I WEI YONGZHUANG I
----------------------------
J J
K Before: His Honour Judge Tam K
Date: 4 February 2022
L L
Present: Mr Ng Simon K C, Counsel on fiat, for HKSAR
M Mr Wong Hing Wai, Newman, instructed by Patrick Chu, M
Conti Wong Lawyers LLP, assigned by the Director of Legal
N N
Aid, for the defendant
O Offence(s): [1] Burglary (入屋犯法罪) O
P
[2] Possession of arms without a licence (無牌管有槍械) P
[3] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
而留在香港)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Wei pleaded guilty before me to 3 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Burglary, contrary to section 11(1)(b) and (4) of G
the Theft Ordinance, Cap 210. Particulars are that he, on 13 December
H H
2020, in Hong Kong, having entered as a trespasser part of a building
I known as Ground Floor to 2nd Floor, Unit A1, Vista Stanley, No 20 Stanley I
Village Road, Stanley, stole therein two watches, cash of $2,000 Hong
J J
Kong currency, cash of $1,000 United States currency, cash of $300
K Australia currency and cash of GBP200. K
L L
3. Charge 2 is Possession of arms without a licence, contrary to
M section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. M
Particulars are that he, on 14 December 2020, outside the entrance of the
N N
Cross-Harbour Tunnel, Wan Chai, in Hong Kong, had in his possession
O arms, namely one can of pepper spray, without a licence. O
P P
4. Charge 3 is Remaining in Hong Kong without the authority of
Q the Director of Immigration after having landed unlawfully in Hong Kong, Q
contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.
R R
Particulars are that he, on 14 December 2020, having landed in Hong Kong
S unlawfully, remained in Hong Kong without the authority of the Director S
of Immigration.
T T
U U
V V
-3-
A A
B B
Facts admitted by Mr Wei
C C
5. PW1 and his family resided in G/F to 2/F of a house on
D D
Stanley Village Road.
E E
6. On 13 December, at about 10 am, PW1 and his wife left their
F F
home. Their son also left at about 12:15 pm. When PW1 returned at about
G 7:30 pm, he found the window at the G/F living room was broken. His G
home had been ransacked.
H H
I 7. The following items were missing:- I
J J
(a) Two Rolex watches worth a total of $150,000;
K (b) Cash of HK$2,000; K
(c) Cash of USD1,000;
L L
(d) Cash of Australian $300; and
M (e) Cash of GBP200. M
N N
8. At about 4:12 am on the next day, the police intercepted a taxi
O outside the entrance of the Cross-Harbour Tunnel in Wan Chai. Mr Wei O
and another man were in the rear seat.
P P
Q 9. A detective constable PW3 requested Mr Wei to produce his Q
identity card. Mr Wei replied that he did not have one. Upon search, the
R R
following items were found in the left front pocket of Mr Wei’s pants:-
S S
(a) A can of pepper spray;
T T
(b) Cash of USD200;
U U
V V
-4-
A A
B B
(c) Cash of Australian $335;
C (d) Cash of GBP100; C
(e) Cash of RMB102; and
D D
(f) Cash of THB960.
E E
10. The following items were found in Mr Wei’s backpack:-
F F
G (a) A crowbar; G
(b) Two Rolex watches later identified by PW1 to be his
H H
own;
I (c) A glass breaker; I
(d) A torch; and
J J
(e) A pair of gloves.
K K
11. PW3 arrested Mr Wei for the offences of “Remaining in Hong
L L
Kong without the authority of the Director of Immigration”, “Possession
M of arms without a licence” and Burglary. M
N N
12. Cash of HK$20 was also found in the right back pocket of
O Mr Wei’s pants. O
P P
13. During a cautioned VRI conducted on 15 December 2020,
Q Mr Wei stated:- Q
R R
(a) A Vietnamese man brought him to Hong Kong by boat
S from Shenzhen 2 to 3 days ago; S
T T
U U
V V
-5-
A A
B B
(b) The pepper spray was to be used to protect himself from
C wild animals; C
D (c) He had never used the pepper spray; and D
E (d) He entered Hong Kong without any permit. E
F F
14. Mr Wei now admits that he entered PW1’s home as a
G G
trespasser and stole therein; that he possessed the can of pepper spray
H
without a licence; and that he having landed in Hong Kong unlawfully, H
remained without the authority of the Director of Immigration.
I I
J Criminal record J
K K
15. Mr Wei has 5 previous convictions of burglary all sentenced
L together in 2015. On that occasion, Mr Wei, apart from being ordered to L
pay one sum of $2,000 compensation to the victims, received concurrent
M M
prison terms of 25 months after plea for each offence.
N N
Antecedents
O O
P 16. Mr Wei is aged 33 (32 at the time of the offences), a Mainland P
resident and educated to secondary level there. He was a factory worker.
Q Q
He is married and lived with his wife in Guangxi.
R R
Mitigation
S S
T 17. Mr Newman Wong of counsel assigned by the Director of T
Legal Aid mitigated on behalf of Mr Wei.
U U
V V
-6-
A A
B B
C 18. The following is a summary of the mitigation submissions. C
D D
19. The premises were burgled when vacant so no one was
E alarmed. Two Rolex watches and part of the stolen cash were recovered. E
The pepper spray was for the purpose of self-protection against wild
F F
animals like boars as he, being an illegal immigrant, was expecting to live
G in the wild. G
H H
20. The normal starting point for domestic premises burglary is
I one of 3 years. As Mr Wei has entered HK as an illegal immigrant and has I
previous convictions for offences of an identical nature, it is accepted that
J J
the court is entitled to take a higher starting point: HKSAR v Song Jianhua,
K CACC 362/2006. K
L L
21. For the 2nd charge, ie possession of pepper spray, there is no
M sentencing guideline. In HKSAR v Chau Lap Pui [2007] 2 HKC 342, a M
starting point of 6 months’ imprisonment was adopted on appeal.
N N
O 22. For the 3rd charge, the unlawful remaining charge, a O
15 months’ term has been approved for defendants after a guilty plea: R v
P P
So Man King & Ors [1989] 1 HKLR 142.
Q Q
23. The main factor for mitigation is Mr Wei’s guilty pleas.
R R
S 24. As the offences are separate or unrelated in nature, Mr Wong S
is not in a position to ask for wholly concurrent sentences on behalf of
T T
Mr Wei. However, Mr Wong submits that after considering totality, the
U U
V V
-7-
A A
B B
court may still order partially concurrent sentences. Mr Wong reminded
C the court that in HKSAR v Wong Tak Po, HCMA 914/2002, Deputy Judge C
Line (as he then was) considered that 7 months of the 15 months’ term for
D D
the unlawful remaining should be ordered to run concurrently with the
E terms of two robbery charges. E
F F
25. Lastly, Mr Wong submitted a mitigation letter written in
G Chinese by Mr Wei himself. The contents are generally that Mr Wei G
committed the offences for economic reasons resulting from his
H H
grandfather’s medical issues, family expenses and Covid-19; that Mr Wei
I is now regretful and promises never to re-offend; he asks for a lenient I
sentence.
J J
K Sentence K
L L
26. I generally accept Mr Wong’s submissions regarding the
M starting point and sentence after plea, as the case may be, of the 3 offences. M
N N
For Charge 1, I will adopt a starting point of 3 years 6 months bearing in
O mind the aggravating factors identified by Mr Wong. O
P P
27. For Charge 2, I will adopt a starting point of 6 months.
Q Q
28. For Charge 3, I will adopt a sentence after plea of 15 months’
R R
imprisonment.
S S
29. Mr Wei pleaded guilty in good time and he shall enjoy a
T T
sentencing discount of 1/3 in respect of Charges 1 and 2.
U U
V V
-8-
A A
B B
C 30. The three offences were completely disparate in terms of their C
nature and ought, subject only to totality which I shall consider, to attract
D D
wholly consecutive sentences.
E E
31. The following are the sentences that I shall impose.
F F
G (Mr Wei, please stand) G
H H
32. For Charge 1, Mr Wei is to go to prison for 28 months.
I I
33. For Charge 2, he is to go to prison for 4 months.
J J
K 34. For Charge 3, he is to go to prison for 15 months. K
L L
35. I order that the sentence on Charge 2 is to run wholly
M consecutively to that on Charge 1; and that 8 months of the sentence on M
Charge 3 are to run consecutively to the sentences on Charges 1 and 2. The
N N
resulting aggregate sentence is therefore 40 months’ imprisonment.
O O
P P
Q Q
R R
( Isaac Tam )
S District Judge S
T T
U U
V V