HKSAR v. PAK SHUT

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JUDGMENT

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 13th May 1999, the Applicant was sentenced by Deputy Judge Thomas in the District Court to terms of imprisonment totalling 3 years 3 months. He had pleaded guilty to two charges: one of burglary and one of remaining in Hong Kong without the authority of the Director of Immigration. He was sentenced to 2 years' imprisonment on the burglary charge, and to 15 months' imprisonment on the immigration charge, those sentences to be served consecutively to each other. He now applies for leave to appeal against those sentences.

The facts

2. The burglary which the Applicant admitted took place on 11th February 1999. It occurred in a ground floor residential flat in a village near Shatin. The Applicant climbed into the flat through an unlocked window. He claims that he was hungry, but the fact is that once in the flat he stole a number of items, none of which were of very great value. He had been with another man at the time. He was apprehended three days later. Most of the property stolen was recovered, and the Applicant made a clean breast of what he had done.

3. The circumstances surrounding his arrival in Hong Kong were more unusual if the Applicant's version of events is anything to go by. He comes from Jiangsu Province. He claims that for some time he had worked in Shenzhen. One day he was stopped by a public security official there. He did not have his permit authorising him to stay in Shenzhen on him. He was removed from Shenzhen and detained. On his release, he discovered that he could not return to Shenzhen without identification, and he claims that he hid under a container vehicle which he thought was going to Shenzhen. When the vehicle came to a halt, he discovered that he had arrived in Hong Kong. That, he says, was the same day on which he later committed the burglary.

Were the sentences excessive?

4. The judge took 3 years' imprisonment as his starting point on the burglary charge. That was in accordance with the tariff for burglaries of residential homes, even if as here there was no confrontation with any of the occupants. He reduced that term to 2 years' imprisonment to reflect the Applicant's plea of guilty. He then imposed a consecutive sentence for the offence of remaining in Hong Kong without authority in accordance with the tariff for offences of that kind. There is no basis on which this approach can be said to be wrong in principle on the material before the judge.

5. The Applicant is now 18 years old. In his grounds of application for leave to appeal, he referred to the circumstances in which he claims to have arrived in Hong Kong. We are very sceptical about the truth of what he claims. Why was the judge not told what the Applicant has told us? But even if what he claims is true, we do not think that it undermines the sentences imposed by the judge or renders them unduly excessive. What the Applicant should have done when he realised that he had arrived in Hong Kong rather than Shenzhen was to give himself up to the police and to ask for his removal to the mainland. He only has himself to blame for remaining in hiding in Hong Kong and committing a serious criminal offence while he was here. Thus, the circumstances of his arrival in Hong Kong, even if true, do not, in our view, justify a departure from the guideline sentence for illegal immigrants laid down in So Man King [1989] HKLR 142.

Conclusion

6. For these reasons, this application for leave to appeal must be refused.