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B DCCC 729/2018 B
[2019] HKDC 705
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D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
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CRIMINAL CASE NO 729 OF 2018
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HKSAR
G G
v
H HOANG Van Cuong H
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Before: HH Judge E. Yip
J Date: 3rd April 2019 at 10:56 am J
Present: Mr Isaac GUAN, Public Prosecutor, of the Department of
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Justice, for HKSAR
L Mr SADHWANI Kamlesh Arjan, instructed by M/s Massie & L
Clement assigned by DLA for Defendant
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Offences: [1]&[2] Taking employment while being a person who
N remained in Hong Kong without the authority of the Director N
of Immigration after having landed in Hong Kong unlawfully
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(身為在香港非法入境後但未得入境事務處處長授權而留
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在香港的人接受僱傭工作)
Q [3] Burglary (入屋犯法罪) Q
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S S
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Reasons for Sentence
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D Charges and facts D
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1. The Defendant pleads guilty to 3 charges as follows:
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(1) Taking employment whilst being a person who remained in
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Hong Kong without the authority of the Director of
H Immigration after having landed in Hong Kong unlawfully, H
contrary to section 38AA(1)(a) and (2) of the Immigration
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Ordinance, Cap. 115 (Charges 1 and 2);
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(2) Burglary of a residential unit (Charge 3).
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L L
Facts for Charge 3
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th
2. At 2245 h on 26 February 2018, the resident and family
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returned home after a few hours out and found their flat burgled. It was a
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flat on 7th floor of a building on Wan Chai Road, Hong Kong. A report O
was made to the police. CCTV footage of the building showed a male in a
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facemask entered the passcode and entered the building at 1812 h. The
Q resident identified him as her former colleague working as a part-time Q
waiter at the same restaurant. He had asked her many times where she
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lived and once accompanied her to the entrance of the building. She might
S have mentioned to him her exact address. S
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B 3. A resident on the 4th Floor had seen a suspicious male B
climbing down the building’s outside water pipe at 1855 h.
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D 4. The property missing included HK$4,000 in denominations D
of HK$50, HK$20 and HK$10, and other currencies the equivalent of
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about HK$5,661 in total, a collection of special-design red packets and a
F silver wrist chain. There was damage to the front gate lock, which cost F
$500.
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H 5. The police arrested the Defendant 2 days later near his H
residence. He had on him one of the special-design red packets reportedly
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missing from the burgled flat. A search of his residence unfolded the silver
J wrist chain also reportedly missing from the burgled flat. There was cash J
of HK$4,000 also in in denominations of HK$50, HK$20 and HK$10.
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6. In an interview under caution, the Defendant denied the
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burglary. M
N N
Facts for Charges 1 and 2
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7. The Defendant landed in Hong Kong unlawfully in June 2014.
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His non-refoulement claim was rejected on 13th August 2015. His appeal
Q was dismissed on 11th August 2017. Q
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8. Investigation revealed that he had worked as a part-time
S waiter at South China Restaurant in South China Athletic Association on S
Caroline Hill Road, Hong Kong where the resident of the burgled flat
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B worked. He used the name “Chan Wing Hong” for the restaurant’s B
personnel record.
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D 9. Without the authority of the Director of Immigration, he was D
not permitted to take up employment for 1st August – 28th November 2017,
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the offending period for Charge 1, and for 21 January – 26 February
st th
F 2018, the offending period for Charge 2. F
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Background and mitigation
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10. He is now 32 years of age. He was born in North Vietnam.
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He was married but separated with his wife since 2014. He has a child,
J one year old now, by a Form 8 holder who had been sent back to Vietnam J
with the child last year.
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L L
11. He had 6 records for theft by shoplifting, receiving jail terms
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ranging from 2 weeks to 2 months from January 2016 to April 2018. The M
first five of them took place before the present case. He was a persistent
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offender for theft. This is an aggravating factor in his sentence. His
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counsel does not argue otherwise. O
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12. He had also a record for unlawful remaining, resulting in a
Q sentence of 15 months in March 2019 (E/2759/14). It related to his Q
unlawful remaining on 11th June 2014. There was a lapse over 4 years
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between the offence and the plea and sentence as the case was repeatedly
S until completion of all his refugee claim proceedings in January 2019. S
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B 13. He committed the present offence as he had not enough B
money for his daily living and medical expenses for the delivery of his
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child in Hong Kong.
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Sentencing guidelines for burglary of residential units
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F 14. The Court of Appeal states that for burglary of domestic F
premises with no aggravating factors, 3 years shall be the proper starting
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point for a first offender of full age (R v Chan Yui-man [1989] HKCU 36).
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Sentencing this Defendant
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J 15. For Charges 1 and 2, ie the unlawful employment charges, I J
take a starting point of 3 months each. After the one-third discount for
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timely plea of guilty, the sentence is 2 months each. These two charges
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can be construed as part and parcel of the same act. The sentences can be
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concurrent. M
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16. For Charge 3, ie the burglary charge, I consider an initial
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starting point of 3 years. As he was a persistent offender for theft, I O
increase the starting point by 3 months for more deterrence. After the one-
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third discount for timely plea of guilty, the sentence is 2 years 2 months. I
Q deduct 1 month for the recovery of, and the compensation for, most of the Q
loss to the victims. The sentence is 2 years 1 month.
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S 17. Unlawful employment charges usually carry sentences S
consecutive to other charges of a different nature. However, he was only
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sentenced to 15 months last month by another court. By totality, I order
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B the sentences today to be all concurrent, ie 2 years 1 month in all. This B
shall be consecutive to the sentence of 15 months he is serving.
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D D
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(E. Yip)
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District Judge F
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