DCCC19/2022 HKSAR v. LUO QINGPING AND ANOTHER - LawHero
DCCC19/2022
區域法院（刑事）Deputy District Judge K Lo11/5/2022[2022] HKDC 526
DCCC19/2022
A A
B B
DCCC 19/2022
C [2022] HKDC 526 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 19 OF 2022
F F
G -------------------------------- G
HKSAR
H H
v
I LUO QINGPING (D1) I
HUANG FUFENG (D2)
J J
--------------------------------
K K
Before: Deputy District Judge K Lo
L L
Date: 12 May 2022
M Present: Mr Wong Hin Sun Jack, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
N N
Mr Cheng Kee Tin Sky, instructed by CLY Lawyers, assigned
O by the Director of Legal Aid, for the 1st defendant O
Mr Cheung Wai Sun Patrick, instructed by Kwok, Ng & Chan,
P P
nd
assigned by the Director of Legal Aid, for the 2 defendant
Q Offence: [1] Burglary (入屋犯法罪) Q
R
[2] Resisting a police officer in the execution of his duty (抗 R
拒執行職責的警務人員)
S S
[3] Resisting police officers in the execution of their duties
T (抗拒執行職責的警務人員) T
U U
V V
-2-
A A
B B
[4] Going equipped for stealing (外出時備有偷竊用的物品)
C [5] & [6] Possession of arms without a licence (無牌管有槍 C
械)
D D
[7] & [8] Remaining in Hong Kong without the authority of
E E
the Director of Immigration after having landed unlawfully in
F
Hong Kong (在香港非法入境後未得入境事務處處長授權 F
而留在香港)
G G
H -------------------------------------- H
REASONS FOR SENTENCE
I I
--------------------------------------
J J
1. D1 is convicted on his own plea and agreement to Summary
K K
of Facts to:-
L L
(a) a charge of burglary, contrary to section 11(1)(b) and
M M
(4) of the Theft Ordinance, Cap 210 (Charge 1);
N N
O
(b) a charge of resisting a police officer in the execution of O
his duty, contrary to section 63 of the Police Force
P P
Ordinance, Cap 232 (Charge 2);
Q Q
(c) a charge of going equipped for stealing, contrary to
R R
section 27(1) of the Theft Ordinance, Cap 210 (Charge
S 4); S
T T
U U
V V
-3-
A A
B B
(d) a charge of possession of arms without a licence,
C contrary to section 13 of the Firearms and Ammunition C
Ordinance, Cap 238 (Charge 5); and
D D
E (e) a charge of remaining in Hong Kong without the E
authority of the Director of Immigration after having
F F
landed unlawfully in Hong Kong, contrary to section
G 38(1)(b) of the Immigration Ordinance, Cap 115 G
(Charge 7).
H H
I 2. D2 is convicted on his own plea and agreement to Summary I
of Facts to:-
J J
K (a) a charge of resisting police officers in the execution of K
their duties, contrary to section 63 of the Police Force
L L
Ordinance, Cap 232 (Charge 3);
M M
(b) a charge of going equipped for stealing, contrary to
N N
section 27(1) of the Theft Ordinance, Cap 210 (Charge
O 4); O
P P
(c) a charge of possession of arms without a licence,
Q contrary to section 13 of the Firearms and Ammunition Q
Ordinance, Cap 238 (Charge 6); and
R R
S (d) a charge of remaining in Hong Kong without the S
authority of the Director of Immigration after having
T T
landed unlawfully in Hong Kong, contrary to section
U U
V V
-4-
A A
B B
38(1)(b) of the Immigration Ordinance, Cap 115
C (Charge 8). C
D D
Facts
E E
Charges 2-8
F F
G 3. At 0322 hours on 18 September 2021, 3 police officers (PW1- G
3) spotted D1 and D2 and a wanted person loitering at San Uk Tsai Tsuen,
H H
Sha Tau Kok Road, Fanling. D1 was seen holding a crowbar in his hand.
I D1 and D2 and the wanted person were peeping at the village houses. I
PW1-3 on approaching alerted D1 and D2 and the wanted person. They
J J
fled and PW1-3 gave chase.
K K
4. PW1 chased after D1 and saw D1 dropping the crowbar onto
L L
the ground. PW1 caught up with D1 and grabbed D1’s left hand. D1
M struggle with PW1. D1 attempted to punch PW1’s chest, which PW1 M
managed to dodge. Due to D1’s fierce resistance, PW1 drew his baton and
N N
struck D1 on his thighs to stop him from resisting and escaping. D1 and
O PW1 fell onto the ground where they continued to tangle with D1 punching O
and kicking PW1 to resist arrest. Soon PW3 arrived and assisted PW1 to
P P
subdue D1. The crowbar was recovered on the ground near D1.
Q Q
5. Meanwhile PW2 and PW3 gave chase to D2 and the wanted
R R
person. The wanted person fled towards an unknown direction. During
S the chase, D2 fell onto the ground. PW2 attempted to apprehend D2 who S
struggled fiercely and punched PW2’s left arm 3-4 times to resist arrest.
T T
U U
V V
-5-
A A
B B
PW3 soon arrived to assist PW2 whereupon D2 was subdued. PW3 then
C proceeded to assist PW1 to subdue D1. C
D D
6. D1 and D2 were arrested. They were both wearing gloves at
E the time. D2 had a torchlight on his person. The rucksacks carried by D1 E
and D2 were searched and each rucksack contained, inter alia, one
F F
balaclava mask, one spray canister and one pair of gloves. D1’s rucksack
G also had a torchlight. Both D1 and D2 had no proof of identity. G
H H
7. PW1-3 were sent to hospital where PW1 was found to have
I sprain on right ankle and both hands and knee abrasions. PW2 was found I
to have right hand abrasions, left shin abrasions and bruise, right shin
J J
abrasions and 2 cm laceration. PW3 was found to have sprain on left wrist,
K left index finger abrasion, left forearm abrasion. K
L L
Charge 1
M M
8. In the evening on 22 August 2021, Choy Yuk Choy (PW10)
N N
and her 2 children were alone at home at No 22 Leng Tsai Tsuen, Sha Tau
O Kok Road, Ma Mei Ha, Fanling, on the third floor when she heard a sound O
on the ground floor. PW10’s home was installed with CCTV cameras.
P P
CCTV captured 2 males outside her home. PW10 went to ground floor
Q and found that one window grille was removed and the window was prised Q
with a hard object. The main door, which was previously locked, was also
R R
found unlocked. No items were stolen. The cost for repair of the window
S was $5,000. S
T T
U U
V V
-6-
A A
B B
9. D1 under caution said, inter alia, that he smuggled into Hong
C Kong together with D2 and the wanted person on 17 September 2021 and C
the purpose of coming to Hong Kong was to commit burglary. This was
D D
the second time that he smuggle into Hong Kong and the purpose of being
E at the village was to steal from houses. He admitted possession of the E
seized items, ie crowbar, gloves, torch, balaclava mask, were for
F F
committing burglary. The pepper spray was for self-defence and he said
G he had never used it in Hong Kong. He admitted Charge 1 that he broke G
into the house by prising the window grille with a screwdriver.
H H
I 10. Under caution D2 said, inter alia, that he smuggled into Hong I
Kong on 16 September 2021 from Shenzhen with D1 and the wanted
J J
person on 17 September 2021. The purpose of coming to Hong Kong was
K to steal and burgle. When asked about the use of the balaclava mask, he K
said it was to conceal his face. When asked about the pepper spray, he said
L L
it was for self-defence and to be used when being chased by Mainland
M police. M
N N
11. The 2 spray canisters seized from D1 and D2 respectively
O were examined by the government chemist and the liquids inside each of O
the containers were found to contain 2-chlorobenzalmalononitrile, which
P P
is a noxious chemical.
Q Q
Criminal Record
R R
S 12. Both defendants have a clear record in Hong Kong. They are S
unlawful entrants to Hong Kong.
T T
U U
V V
-7-
A A
B B
Mitigation
C C
D1
D D
E 13. D1 was born in Mainland and he is now aged 45. He was E
educated up to primary school level. He used to live with his parents before
F F
the arrest in the Mainland. He says he earned RMB 600 as a farmer and
G that he had all along been leading a law-abiding and simple life as a farmer. G
H H
14. Defence counsel submitted that D1 pleaded guilty to all the
I charges, saving court’s time and resources, and this also supports his I
genuine remorse for what he has done, and he promises this court not to
J J
reoffend. It was said that since his arrest he was incarcerated, he would
K learn new skills and knowledge on language and carpentry through the K
courses available in prison so that he could turn a new leaf upon his release.
L L
Defence counsel urged this court to give the shortest possible sentence for
M D1 so that he could go back to his hometown to take care of his elderly M
mother.
N N
O 15. For Charge 1, defence counsel urged this court to adopt the O
sentencing guideline in the case of R v Chan Yui Han, CACC 36/1988,
P P
where the sentencing starting point of domestic premises burglary for a
Q fresh offender of full age is 3 years’ imprisonment. Q
R R
16. For Charge 7, he urged the court to adopt the sentencing
S guideline in R v So Man King & Ors [1989] 1 HKLR 142, that an S
immediate sentence of 15 months’ imprisonment should be used as the
T T
U U
V V
-8-
A A
B B
basic guideline for an unlawful remaining in Hong Kong for a fresh
C offender on a guilty plea. C
D D
17. He also submitted that the law was well-settled that the
E sentence for burglary should run consecutive to the sentence for unlawfully E
remaining in Hong Kong as held by the Court of Appeal in the case of
F F
HKSAR v Kei San Man & Another, CACC 246/1999.
G G
18. As for the charges of 2, 4 and 5, defence counsel submitted
H H
that for these charges there is no sentencing tariff.
I I
19. For Charge 2, defence counsel submitted that the maximum
J J
penalty is 6 months’ imprisonment. He accepted that the struggle and
K resistance displayed by D1 on Charge 2 is a blatant disregard of the law. K
But he said that that D1 now knows he is stupid in resisting police officers
L L
at the material times and he urged this court to be lenient on D1.
M M
20. For Charge 4, it was submitted that D1 and D2 went equipped
N N
for stealing together with an unknown person, they were found to be in
O possession of a crowbar, gloves, balaclavas, torches in a public place O
during the small hours on the day of the offence for use in a commission
P P
or in the course of burglary or theft.
Q Q
21. Defence counsel referred this court to the case of R v Tsang
R R
Wing Ming, CACC 315/1989, where the defendant acted alone and was
S found wearing gloves with screwdriver and torch, was sentenced to 2 years S
and 6 months’ imprisonment for going equipped for stealing, and 3 months’
T T
imprisonment for resisting a police officer in the execution of his duty.
U U
V V
-9-
A A
B B
C 22. He submitted further that the facts of the present case on C
Charge 4 can be distinguished from the Tsang Wing Ming case because in
D D
that case the defendant was a professional burglar, but not in our case as
E D1 is a man of clear record. Defence counsel for D1 acknowledges, E
however, that D1 had at the time of the offence in possession of more items
F F
for use in burglary or theft than that in the case of Tsang Wing Ming.
G Nevertheless, he submitted that a starting point of lower than 2 years 6 G
months on Charge 4 is appropriate in this case in view of D1’s clear record.
H H
I 23. He also referred this court to the case of HKSAR v Li Ho Yin, I
CACC 240/2012, where the Court of Appeal dismissed the applicant’s
J J
appeal against sentence. The district judge in that case adopted 2 years and
K 6 months as the sentence starting point for the charge of going equipped K
for stealing. Defence counsel also said that the appellant in the Li Ho Yin
L L
case is again a professional burglar and he urged the court to impose a
M sentencing starting point of 12 months’ imprisonment for Charge 4. M
N N
24. For Charge 5, defence counsel submitted that the arms in
O question is what we call a pepper spray canister. He referred this court to O
the case of HKSAR v Chau Lap Pui, CACC 358/2006, where on a similar
P P
charge, on appeal, the defendant was sentenced to 4 months’ imprisonment
Q after a guilty plea. Defence counsel urged this court to adopt the same Q
sentencing starting point for this charge.
R R
S 25. Defence counsel also asked this court to consider the totality S
principle and impose partly consecutive, partly concurrent sentence on D1
T T
U U
V V
- 10 -
A A
B B
for the charges committed on 18 September 2021 to reflect D1’s overall
C criminality in the case. C
D D
D2
E E
26. Defence counsel for D2 submitted that D2 pleaded guilty to
F F
all the charges and is therefore entitled to full one-third sentencing discount
G for these charges. He also submitted that D2 smuggled to Hong Kong with G
D1 and another person and that D2 has a clear record in Hong Kong.
H H
I 27. For Charge 3, defence counsel submitted that the 2 police I
officers only suffered minor injuries and these injuries might be caused
J J
because of the struggle. He urged this court to adopt a sentencing starting
K point of 3 months for this charge. K
L L
28. As for Charge 4, he submitted that the articles involved were
M ordinary everyday tools and not sophisticated tools, there was no detailed M
planning and no specific target for the crime.
N N
O 29. For Charge 6, he again referred this court to the case of Chau O
Lap Pui and he said in the present case there is no evidence that the spray
P P
was to be used for illicit purpose. He urged this court to adopt a sentencing
Q starting point of 6 months’ imprisonment for this charge. Q
R R
30. For Charge 8, defence counsel conceded that the sentence of
S 15 months’ imprisonment should be imposed on a guilty plea. S
T T
31. He also asked this court to consider the totality principle.
U U
V V
- 11 -
A A
B B
C Discussion C
D D
32. Before sentencing, this court has considered all submissions
E by defence counsel, including the legal authorities in the area. E
F F
Charge 1
G G
33. According to section 11(1)(b) and (4) of the Theft Ordinance,
H H
Cap 210, any person who commits burglary shall be guilty of an offence
I and shall be liable on conviction upon indictment to imprisonment for 14 I
years.
J J
K 34. The premises in question is a domestic premises. As cited by K
defence counsel for D1, the Court of Appeal in the case of Chan Yui Han,
L L
laid down sentencing guideline for burglary of domestic premises. It was
M held that 3 years’ imprisonment was the proper starting point for a first M
offender of full age for burglary in domestic premises. It is also subject to
N N
adjustment upon any aggravating or mitigating factors.
O O
35. For this offence, although defence counsel for D1 submitted
P P
D1 acted alone, the CCTV captured two persons and one window grille
Q was removed and the window was prised with a hard object. This supports Q
the fact that tools were used in the commission of the offence. In fact, D1
R R
in the video-recorded interview admitted using a screwdriver. The main
S door to the premises previously locked was found also unlocked. S
T T
U U
V V
- 12 -
A A
B B
36. The fact that D1 has a clear record in Hong Kong bears little
C weight as he was an unlawful entrant to Hong Kong. C
D D
37. This court noted that no property was actually stolen, although
E the damage to the window grille caused the victim $5,000 as repair fee. It E
is also noted that the defendant committed the offence in the evening when
F F
people are expected to be inside the premises. As a matter of fact, PW10
G and her 2 children were inside the premises at the time of the offence. G
H H
38. The fact that D1 committed the offence together with another
I is an aggravating feature in sentencing. The appropriate sentencing I
starting point, in my view, would be 3 years and 3 months’ imprisonment.
J J
K 39. D1 has pleaded guilty and is therefore entitled to full one-third K
sentencing discount. He is therefore sentenced to 2 years and 2 months’
L L
imprisonment for this charge.
M M
Charge 2
N N
O 40. On conviction upon indictment of this offence, a person is O
liable to a fine at level 2 and to imprisonment for 6 months.
P P
Q 41. Having regard to the circumstances and the manner under Q
which the offence was committed by D1, the nature and extent of the
R R
injuries to the police officer, this court considers appropriate sentencing
S starting point is 3 months’ imprisonment. S
T T
U U
V V
- 13 -
A A
B B
42. D1 is again entitled to full one-third sentencing discount by
C reason of his guilty plea and therefore he is sentenced to 2 months’ C
imprisonment for this charge.
D D
E Charge 3 E
F F
43. Similarly, considering the circumstances and manner under
G which D2 committed this offence, the nature and extent of injury to the G
police officers, same sentencing starting point of 3 months’ imprisonment
H H
is adopted.
I I
44. D2 is similarly sentenced to 2 months’ imprisonment by
J J
reason of his guilty plea.
K K
Charge 4
L L
M 45. On conviction upon indictment of this charge, a person is M
liable to 3 years’ imprisonment.
N N
O 46. Both defendants and another were found in the early hours O
loitering and peeping at the village houses in San Uk Tsai Tsuen, Sha Tau
P P
Kok Road, Fanling. D1 was holding a crowbar in his hand, and D1 and D2
Q had a crowbar, gloves, torches, balaclavas with them. Q
R R
47. There is no sentencing guideline for this offence.
S S
48. Having regard to the circumstances under which the
T T
defendants were apprehended, the nature and quantity of the equipment
U U
V V
- 14 -
A A
B B
carried by the defendants at the time, the Li Ho Yin case, this court finds
C that when the defendants were apprehended, they were all fully equipped C
and prepared for burglary for domestic premises but were still in the course
D D
of deciding on the target. This court considers appropriate sentencing
E starting point is 1 year and 9 months’ imprisonment. However, 3 persons E
were involved under this charge. They also had the balaclavas on them,
F F
obviously to hide their identity to evade apprehension, as admitted by D2
G in his video-recorded interview. D1 also said that the same was used for G
burglary in his video-recorded interview. These are both aggravating
H H
features for which the sentencing starting point is enhanced to 2 years and
I 3 months’ imprisonment. I
J J
49. By reason of their guilty plea, they are entitled to the full one-
K third sentencing discount. Each of D1 and D2 is therefore sentenced to 18 K
months’ imprisonment for this charge.
L L
M Charges 5 and 6 M
N N
50. On conviction upon indictment of this offence, a person is
O liable to a fine at level 6 and to imprisonment for 14 years. O
P P
51. Defence counsel for both defendants cited to this court the
Q Chau Lap Pui case where on appeal the defendant who possessed a bottle Q
of pepper spray was sentenced to 4 months’ imprisonment upon his guilty
R R
plea. In that case there was no evidence before the court that the pepper
S spray was to be used for any illicit purpose. S
T T
U U
V V
- 15 -
A A
B B
52. On the issue of use of the pepper spray, defence counsel have
C both submitted on behalf of the defendants that they were to be used for C
self-defence purpose. In court, this court has indicated its reservation on
D D
accepting such contention and inquired the defendants whether they would
E like to proceed with a Newton hearing on this issue. Defence counsel after E
taking instructions have confirmed to this court that both defendants do not
F F
wish to proceed with the Newton hearing, although they knew that this
G court is not going to accept their contention that they possessed the pepper G
spray for self-defence.
H H
I 53. In the circumstances of this case, this court finds that the only I
inference drawn was that the pepper spray would be used in the
J J
commission of the intended burglary for subduing the victim if the need
K should arise.1 K
L L
54. Having regard to the nature of the pepper spray and the
M circumstances on which they were found on the defendants, the appropriate M
sentencing starting point would be 9 months’ imprisonment as in the Wong
N N
Hok Hang case.
O O
55. D1 and D2 is therefore sentenced to 6 months’ imprisonment
P P
for Charge 5 and Charge 6 respectively upon their guilty plea.
Q Q
Charges 7 and 8
R R
S 56. On conviction upon indictment of this offence, a person is S
liable to a fine at level 4 and to imprisonment for 3 years.
T T
1
HKSAR v Wong Hok Hang and 2 Others, CACC 255/2004
U U
V V
- 16 -
A A
B B
C 57. It is first settled in the case of So Man King that the sentencing C
starting guideline for this offence is 15 months’ imprisonment upon a
D D
guilty plea. Accordingly, D1 and D2 is sentenced to 15 months’
E imprisonment for Charge 7 and Charge 8 respectively. E
F F
58. This court now considers the totality principle and the just and
G proportionate sentence for each of the defendants, having regard to their G
overall criminality and culpability in the case.
H H
I D1 I
J J
59. The burglary offence (Charge 1) was committed by D1 nearly
K a month prior to the other offences. These are separate incidents. But this K
is, as in Charge 4, theft-related. The commission of Charge 5 by D1 is
L L
obviously related to Charge 4. Its commission adds to the culpability of
M D1. This court in the circumstances considers that 12 month of the M
sentence in Charge 4 is to run consecutive to the sentence of Charge 1. 3
N N
months of the sentence in Charge 5 is to run consecutive to the sentence of
O Charges 1 and 4, the rest to run concurrently. The sentence of Charge 2 O
and Charge 7 is to run wholly consecutive to the sentence of Charges 1, 4
P P
and 5.
Q Q
60. Accordingly, D1 is sentenced to a total of 58 months’
R R
imprisonment, which this court considers the just and proportionate
S sentence for D1, having regard to his overall culpability in the case. S
T T
U U
V V
- 17 -
A A
B B
D2
C C
61. Likewise, commission of Charge 6 by D2 was related to the
D D
commission of Charge 4. Its commission adds to D2’s culpability. 3
E months of the sentence in Charge 6 is to run consecutive to the sentence of E
Charge 4, the rest to run concurrently. Commission of Charge 3, though
F F
related to the Charge 4 offence, was of a totally different nature. Sentence
G of Charge 3 and Charge 8 is to run wholly consecutive to the sentence of G
Charges 4 and 6.
H H
I 62. D2 is therefore sentenced to a total of 38 months’ I
imprisonment, which this court considers the just and proportionate
J J
sentence to D2’s overall culpability in this case.
K K
L L
M M
N N
( K Lo )
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 19/2022
C [2022] HKDC 526 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 19 OF 2022
F F
G -------------------------------- G
HKSAR
H H
v
I LUO QINGPING (D1) I
HUANG FUFENG (D2)
J J
--------------------------------
K K
Before: Deputy District Judge K Lo
L L
Date: 12 May 2022
M Present: Mr Wong Hin Sun Jack, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
N N
Mr Cheng Kee Tin Sky, instructed by CLY Lawyers, assigned
O by the Director of Legal Aid, for the 1st defendant O
Mr Cheung Wai Sun Patrick, instructed by Kwok, Ng & Chan,
P P
nd
assigned by the Director of Legal Aid, for the 2 defendant
Q Offence: [1] Burglary (入屋犯法罪) Q
R
[2] Resisting a police officer in the execution of his duty (抗 R
拒執行職責的警務人員)
S S
[3] Resisting police officers in the execution of their duties
T (抗拒執行職責的警務人員) T
U U
V V
-2-
A A
B B
[4] Going equipped for stealing (外出時備有偷竊用的物品)
C [5] & [6] Possession of arms without a licence (無牌管有槍 C
械)
D D
[7] & [8] Remaining in Hong Kong without the authority of
E E
the Director of Immigration after having landed unlawfully in
F
Hong Kong (在香港非法入境後未得入境事務處處長授權 F
而留在香港)
G G
H -------------------------------------- H
REASONS FOR SENTENCE
I I
--------------------------------------
J J
1. D1 is convicted on his own plea and agreement to Summary
K K
of Facts to:-
L L
(a) a charge of burglary, contrary to section 11(1)(b) and
M M
(4) of the Theft Ordinance, Cap 210 (Charge 1);
N N
O
(b) a charge of resisting a police officer in the execution of O
his duty, contrary to section 63 of the Police Force
P P
Ordinance, Cap 232 (Charge 2);
Q Q
(c) a charge of going equipped for stealing, contrary to
R R
section 27(1) of the Theft Ordinance, Cap 210 (Charge
S 4); S
T T
U U
V V
-3-
A A
B B
(d) a charge of possession of arms without a licence,
C contrary to section 13 of the Firearms and Ammunition C
Ordinance, Cap 238 (Charge 5); and
D D
E (e) a charge of remaining in Hong Kong without the E
authority of the Director of Immigration after having
F F
landed unlawfully in Hong Kong, contrary to section
G 38(1)(b) of the Immigration Ordinance, Cap 115 G
(Charge 7).
H H
I 2. D2 is convicted on his own plea and agreement to Summary I
of Facts to:-
J J
K (a) a charge of resisting police officers in the execution of K
their duties, contrary to section 63 of the Police Force
L L
Ordinance, Cap 232 (Charge 3);
M M
(b) a charge of going equipped for stealing, contrary to
N N
section 27(1) of the Theft Ordinance, Cap 210 (Charge
O 4); O
P P
(c) a charge of possession of arms without a licence,
Q contrary to section 13 of the Firearms and Ammunition Q
Ordinance, Cap 238 (Charge 6); and
R R
S (d) a charge of remaining in Hong Kong without the S
authority of the Director of Immigration after having
T T
landed unlawfully in Hong Kong, contrary to section
U U
V V
-4-
A A
B B
38(1)(b) of the Immigration Ordinance, Cap 115
C (Charge 8). C
D D
Facts
E E
Charges 2-8
F F
G 3. At 0322 hours on 18 September 2021, 3 police officers (PW1- G
3) spotted D1 and D2 and a wanted person loitering at San Uk Tsai Tsuen,
H H
Sha Tau Kok Road, Fanling. D1 was seen holding a crowbar in his hand.
I D1 and D2 and the wanted person were peeping at the village houses. I
PW1-3 on approaching alerted D1 and D2 and the wanted person. They
J J
fled and PW1-3 gave chase.
K K
4. PW1 chased after D1 and saw D1 dropping the crowbar onto
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the ground. PW1 caught up with D1 and grabbed D1’s left hand. D1
M struggle with PW1. D1 attempted to punch PW1’s chest, which PW1 M
managed to dodge. Due to D1’s fierce resistance, PW1 drew his baton and
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struck D1 on his thighs to stop him from resisting and escaping. D1 and
O PW1 fell onto the ground where they continued to tangle with D1 punching O
and kicking PW1 to resist arrest. Soon PW3 arrived and assisted PW1 to
P P
subdue D1. The crowbar was recovered on the ground near D1.
Q Q
5. Meanwhile PW2 and PW3 gave chase to D2 and the wanted
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person. The wanted person fled towards an unknown direction. During
S the chase, D2 fell onto the ground. PW2 attempted to apprehend D2 who S
struggled fiercely and punched PW2’s left arm 3-4 times to resist arrest.
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PW3 soon arrived to assist PW2 whereupon D2 was subdued. PW3 then
C proceeded to assist PW1 to subdue D1. C
D D
6. D1 and D2 were arrested. They were both wearing gloves at
E the time. D2 had a torchlight on his person. The rucksacks carried by D1 E
and D2 were searched and each rucksack contained, inter alia, one
F F
balaclava mask, one spray canister and one pair of gloves. D1’s rucksack
G also had a torchlight. Both D1 and D2 had no proof of identity. G
H H
7. PW1-3 were sent to hospital where PW1 was found to have
I sprain on right ankle and both hands and knee abrasions. PW2 was found I
to have right hand abrasions, left shin abrasions and bruise, right shin
J J
abrasions and 2 cm laceration. PW3 was found to have sprain on left wrist,
K left index finger abrasion, left forearm abrasion. K
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Charge 1
M M
8. In the evening on 22 August 2021, Choy Yuk Choy (PW10)
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and her 2 children were alone at home at No 22 Leng Tsai Tsuen, Sha Tau
O Kok Road, Ma Mei Ha, Fanling, on the third floor when she heard a sound O
on the ground floor. PW10’s home was installed with CCTV cameras.
P P
CCTV captured 2 males outside her home. PW10 went to ground floor
Q and found that one window grille was removed and the window was prised Q
with a hard object. The main door, which was previously locked, was also
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found unlocked. No items were stolen. The cost for repair of the window
S was $5,000. S
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A A
B B
9. D1 under caution said, inter alia, that he smuggled into Hong
C Kong together with D2 and the wanted person on 17 September 2021 and C
the purpose of coming to Hong Kong was to commit burglary. This was
D D
the second time that he smuggle into Hong Kong and the purpose of being
E at the village was to steal from houses. He admitted possession of the E
seized items, ie crowbar, gloves, torch, balaclava mask, were for
F F
committing burglary. The pepper spray was for self-defence and he said
G he had never used it in Hong Kong. He admitted Charge 1 that he broke G
into the house by prising the window grille with a screwdriver.
H H
I 10. Under caution D2 said, inter alia, that he smuggled into Hong I
Kong on 16 September 2021 from Shenzhen with D1 and the wanted
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person on 17 September 2021. The purpose of coming to Hong Kong was
K to steal and burgle. When asked about the use of the balaclava mask, he K
said it was to conceal his face. When asked about the pepper spray, he said
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it was for self-defence and to be used when being chased by Mainland
M police. M
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11. The 2 spray canisters seized from D1 and D2 respectively
O were examined by the government chemist and the liquids inside each of O
the containers were found to contain 2-chlorobenzalmalononitrile, which
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is a noxious chemical.
Q Q
Criminal Record
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S 12. Both defendants have a clear record in Hong Kong. They are S
unlawful entrants to Hong Kong.
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B B
Mitigation
C C
D1
D D
E 13. D1 was born in Mainland and he is now aged 45. He was E
educated up to primary school level. He used to live with his parents before
F F
the arrest in the Mainland. He says he earned RMB 600 as a farmer and
G that he had all along been leading a law-abiding and simple life as a farmer. G
H H
14. Defence counsel submitted that D1 pleaded guilty to all the
I charges, saving court’s time and resources, and this also supports his I
genuine remorse for what he has done, and he promises this court not to
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reoffend. It was said that since his arrest he was incarcerated, he would
K learn new skills and knowledge on language and carpentry through the K
courses available in prison so that he could turn a new leaf upon his release.
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Defence counsel urged this court to give the shortest possible sentence for
M D1 so that he could go back to his hometown to take care of his elderly M
mother.
N N
O 15. For Charge 1, defence counsel urged this court to adopt the O
sentencing guideline in the case of R v Chan Yui Han, CACC 36/1988,
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where the sentencing starting point of domestic premises burglary for a
Q fresh offender of full age is 3 years’ imprisonment. Q
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16. For Charge 7, he urged the court to adopt the sentencing
S guideline in R v So Man King & Ors [1989] 1 HKLR 142, that an S
immediate sentence of 15 months’ imprisonment should be used as the
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B B
basic guideline for an unlawful remaining in Hong Kong for a fresh
C offender on a guilty plea. C
D D
17. He also submitted that the law was well-settled that the
E sentence for burglary should run consecutive to the sentence for unlawfully E
remaining in Hong Kong as held by the Court of Appeal in the case of
F F
HKSAR v Kei San Man & Another, CACC 246/1999.
G G
18. As for the charges of 2, 4 and 5, defence counsel submitted
H H
that for these charges there is no sentencing tariff.
I I
19. For Charge 2, defence counsel submitted that the maximum
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penalty is 6 months’ imprisonment. He accepted that the struggle and
K resistance displayed by D1 on Charge 2 is a blatant disregard of the law. K
But he said that that D1 now knows he is stupid in resisting police officers
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at the material times and he urged this court to be lenient on D1.
M M
20. For Charge 4, it was submitted that D1 and D2 went equipped
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for stealing together with an unknown person, they were found to be in
O possession of a crowbar, gloves, balaclavas, torches in a public place O
during the small hours on the day of the offence for use in a commission
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or in the course of burglary or theft.
Q Q
21. Defence counsel referred this court to the case of R v Tsang
R R
Wing Ming, CACC 315/1989, where the defendant acted alone and was
S found wearing gloves with screwdriver and torch, was sentenced to 2 years S
and 6 months’ imprisonment for going equipped for stealing, and 3 months’
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imprisonment for resisting a police officer in the execution of his duty.
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B B
C 22. He submitted further that the facts of the present case on C
Charge 4 can be distinguished from the Tsang Wing Ming case because in
D D
that case the defendant was a professional burglar, but not in our case as
E D1 is a man of clear record. Defence counsel for D1 acknowledges, E
however, that D1 had at the time of the offence in possession of more items
F F
for use in burglary or theft than that in the case of Tsang Wing Ming.
G Nevertheless, he submitted that a starting point of lower than 2 years 6 G
months on Charge 4 is appropriate in this case in view of D1’s clear record.
H H
I 23. He also referred this court to the case of HKSAR v Li Ho Yin, I
CACC 240/2012, where the Court of Appeal dismissed the applicant’s
J J
appeal against sentence. The district judge in that case adopted 2 years and
K 6 months as the sentence starting point for the charge of going equipped K
for stealing. Defence counsel also said that the appellant in the Li Ho Yin
L L
case is again a professional burglar and he urged the court to impose a
M sentencing starting point of 12 months’ imprisonment for Charge 4. M
N N
24. For Charge 5, defence counsel submitted that the arms in
O question is what we call a pepper spray canister. He referred this court to O
the case of HKSAR v Chau Lap Pui, CACC 358/2006, where on a similar
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charge, on appeal, the defendant was sentenced to 4 months’ imprisonment
Q after a guilty plea. Defence counsel urged this court to adopt the same Q
sentencing starting point for this charge.
R R
S 25. Defence counsel also asked this court to consider the totality S
principle and impose partly consecutive, partly concurrent sentence on D1
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A A
B B
for the charges committed on 18 September 2021 to reflect D1’s overall
C criminality in the case. C
D D
D2
E E
26. Defence counsel for D2 submitted that D2 pleaded guilty to
F F
all the charges and is therefore entitled to full one-third sentencing discount
G for these charges. He also submitted that D2 smuggled to Hong Kong with G
D1 and another person and that D2 has a clear record in Hong Kong.
H H
I 27. For Charge 3, defence counsel submitted that the 2 police I
officers only suffered minor injuries and these injuries might be caused
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because of the struggle. He urged this court to adopt a sentencing starting
K point of 3 months for this charge. K
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28. As for Charge 4, he submitted that the articles involved were
M ordinary everyday tools and not sophisticated tools, there was no detailed M
planning and no specific target for the crime.
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O 29. For Charge 6, he again referred this court to the case of Chau O
Lap Pui and he said in the present case there is no evidence that the spray
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was to be used for illicit purpose. He urged this court to adopt a sentencing
Q starting point of 6 months’ imprisonment for this charge. Q
R R
30. For Charge 8, defence counsel conceded that the sentence of
S 15 months’ imprisonment should be imposed on a guilty plea. S
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31. He also asked this court to consider the totality principle.
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B B
C Discussion C
D D
32. Before sentencing, this court has considered all submissions
E by defence counsel, including the legal authorities in the area. E
F F
Charge 1
G G
33. According to section 11(1)(b) and (4) of the Theft Ordinance,
H H
Cap 210, any person who commits burglary shall be guilty of an offence
I and shall be liable on conviction upon indictment to imprisonment for 14 I
years.
J J
K 34. The premises in question is a domestic premises. As cited by K
defence counsel for D1, the Court of Appeal in the case of Chan Yui Han,
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laid down sentencing guideline for burglary of domestic premises. It was
M held that 3 years’ imprisonment was the proper starting point for a first M
offender of full age for burglary in domestic premises. It is also subject to
N N
adjustment upon any aggravating or mitigating factors.
O O
35. For this offence, although defence counsel for D1 submitted
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D1 acted alone, the CCTV captured two persons and one window grille
Q was removed and the window was prised with a hard object. This supports Q
the fact that tools were used in the commission of the offence. In fact, D1
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in the video-recorded interview admitted using a screwdriver. The main
S door to the premises previously locked was found also unlocked. S
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36. The fact that D1 has a clear record in Hong Kong bears little
C weight as he was an unlawful entrant to Hong Kong. C
D D
37. This court noted that no property was actually stolen, although
E the damage to the window grille caused the victim $5,000 as repair fee. It E
is also noted that the defendant committed the offence in the evening when
F F
people are expected to be inside the premises. As a matter of fact, PW10
G and her 2 children were inside the premises at the time of the offence. G
H H
38. The fact that D1 committed the offence together with another
I is an aggravating feature in sentencing. The appropriate sentencing I
starting point, in my view, would be 3 years and 3 months’ imprisonment.
J J
K 39. D1 has pleaded guilty and is therefore entitled to full one-third K
sentencing discount. He is therefore sentenced to 2 years and 2 months’
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imprisonment for this charge.
M M
Charge 2
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O 40. On conviction upon indictment of this offence, a person is O
liable to a fine at level 2 and to imprisonment for 6 months.
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Q 41. Having regard to the circumstances and the manner under Q
which the offence was committed by D1, the nature and extent of the
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injuries to the police officer, this court considers appropriate sentencing
S starting point is 3 months’ imprisonment. S
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42. D1 is again entitled to full one-third sentencing discount by
C reason of his guilty plea and therefore he is sentenced to 2 months’ C
imprisonment for this charge.
D D
E Charge 3 E
F F
43. Similarly, considering the circumstances and manner under
G which D2 committed this offence, the nature and extent of injury to the G
police officers, same sentencing starting point of 3 months’ imprisonment
H H
is adopted.
I I
44. D2 is similarly sentenced to 2 months’ imprisonment by
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reason of his guilty plea.
K K
Charge 4
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M 45. On conviction upon indictment of this charge, a person is M
liable to 3 years’ imprisonment.
N N
O 46. Both defendants and another were found in the early hours O
loitering and peeping at the village houses in San Uk Tsai Tsuen, Sha Tau
P P
Kok Road, Fanling. D1 was holding a crowbar in his hand, and D1 and D2
Q had a crowbar, gloves, torches, balaclavas with them. Q
R R
47. There is no sentencing guideline for this offence.
S S
48. Having regard to the circumstances under which the
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defendants were apprehended, the nature and quantity of the equipment
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A A
B B
carried by the defendants at the time, the Li Ho Yin case, this court finds
C that when the defendants were apprehended, they were all fully equipped C
and prepared for burglary for domestic premises but were still in the course
D D
of deciding on the target. This court considers appropriate sentencing
E starting point is 1 year and 9 months’ imprisonment. However, 3 persons E
were involved under this charge. They also had the balaclavas on them,
F F
obviously to hide their identity to evade apprehension, as admitted by D2
G in his video-recorded interview. D1 also said that the same was used for G
burglary in his video-recorded interview. These are both aggravating
H H
features for which the sentencing starting point is enhanced to 2 years and
I 3 months’ imprisonment. I
J J
49. By reason of their guilty plea, they are entitled to the full one-
K third sentencing discount. Each of D1 and D2 is therefore sentenced to 18 K
months’ imprisonment for this charge.
L L
M Charges 5 and 6 M
N N
50. On conviction upon indictment of this offence, a person is
O liable to a fine at level 6 and to imprisonment for 14 years. O
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51. Defence counsel for both defendants cited to this court the
Q Chau Lap Pui case where on appeal the defendant who possessed a bottle Q
of pepper spray was sentenced to 4 months’ imprisonment upon his guilty
R R
plea. In that case there was no evidence before the court that the pepper
S spray was to be used for any illicit purpose. S
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52. On the issue of use of the pepper spray, defence counsel have
C both submitted on behalf of the defendants that they were to be used for C
self-defence purpose. In court, this court has indicated its reservation on
D D
accepting such contention and inquired the defendants whether they would
E like to proceed with a Newton hearing on this issue. Defence counsel after E
taking instructions have confirmed to this court that both defendants do not
F F
wish to proceed with the Newton hearing, although they knew that this
G court is not going to accept their contention that they possessed the pepper G
spray for self-defence.
H H
I 53. In the circumstances of this case, this court finds that the only I
inference drawn was that the pepper spray would be used in the
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commission of the intended burglary for subduing the victim if the need
K should arise.1 K
L L
54. Having regard to the nature of the pepper spray and the
M circumstances on which they were found on the defendants, the appropriate M
sentencing starting point would be 9 months’ imprisonment as in the Wong
N N
Hok Hang case.
O O
55. D1 and D2 is therefore sentenced to 6 months’ imprisonment
P P
for Charge 5 and Charge 6 respectively upon their guilty plea.
Q Q
Charges 7 and 8
R R
S 56. On conviction upon indictment of this offence, a person is S
liable to a fine at level 4 and to imprisonment for 3 years.
T T
1
HKSAR v Wong Hok Hang and 2 Others, CACC 255/2004
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A A
B B
C 57. It is first settled in the case of So Man King that the sentencing C
starting guideline for this offence is 15 months’ imprisonment upon a
D D
guilty plea. Accordingly, D1 and D2 is sentenced to 15 months’
E imprisonment for Charge 7 and Charge 8 respectively. E
F F
58. This court now considers the totality principle and the just and
G proportionate sentence for each of the defendants, having regard to their G
overall criminality and culpability in the case.
H H
I D1 I
J J
59. The burglary offence (Charge 1) was committed by D1 nearly
K a month prior to the other offences. These are separate incidents. But this K
is, as in Charge 4, theft-related. The commission of Charge 5 by D1 is
L L
obviously related to Charge 4. Its commission adds to the culpability of
M D1. This court in the circumstances considers that 12 month of the M
sentence in Charge 4 is to run consecutive to the sentence of Charge 1. 3
N N
months of the sentence in Charge 5 is to run consecutive to the sentence of
O Charges 1 and 4, the rest to run concurrently. The sentence of Charge 2 O
and Charge 7 is to run wholly consecutive to the sentence of Charges 1, 4
P P
and 5.
Q Q
60. Accordingly, D1 is sentenced to a total of 58 months’
R R
imprisonment, which this court considers the just and proportionate
S sentence for D1, having regard to his overall culpability in the case. S
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A A
B B
D2
C C
61. Likewise, commission of Charge 6 by D2 was related to the
D D
commission of Charge 4. Its commission adds to D2’s culpability. 3
E months of the sentence in Charge 6 is to run consecutive to the sentence of E
Charge 4, the rest to run concurrently. Commission of Charge 3, though
F F
related to the Charge 4 offence, was of a totally different nature. Sentence
G of Charge 3 and Charge 8 is to run wholly consecutive to the sentence of G
Charges 4 and 6.
H H
I 62. D2 is therefore sentenced to a total of 38 months’ I
imprisonment, which this court considers the just and proportionate
J J
sentence to D2’s overall culpability in this case.
K K
L L
M M
N N
( K Lo )
Deputy District Judge
O O
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Q Q
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