HKSAR v. NG KIN KWOK

CACC619/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 619 OF 1998

(ON APPEAL FROM DCCC 1069 OF 1998)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore J.A. (giving the judgment of the Court):

1. On 4th December 1998, the Applicant (D1 at trial) pleaded guilty before Judge Gill in the District Court to possessing an imitation firearm and to remaining in Hong Kong without authority. D1 was with a second man (D2) who was found in possession of a 27 cm. long knife. He was also in Hong Kong without authority and pleaded guilty.

2. The facts, as found by the judge in his Reasons for Sentence, revealed that the police discovered these offences as the result of feeling suspicious about the two men's movements in the early hours of an August morning. The men explained that they had come to seek settlement of a debt and the weapons were to reinforce payment if necessary. D1's pistol was a toy. The judge took an eighteen-month starting point for this offence.

3. For the immigration offence, although the usual tariff imposed on an offender would have been fifteen months, the judge rightly found that this offence was aggravated in the circumstances of its commission and required an enhanced sentence. D1 had, on four previous occasions, come to Hong Kong without lawful authority and, on some of those occasions, had committed crime. Giving a one-third discount for the plea to the first charge and no discount of any kind to the starting point of eighteen months for the immigration offence, D1 received twelve months and eighteen months to run consecutively for the offences. He now seeks leave to appeal against sentence on a number of grounds.

4. His principal reason is founded on the medical grounds which he has set out for us to read. He has told us, and we accept, that he suffers from a serious, contagious disease. He has also outlined a number of difficulties with life on the mainland.

5. The judge dealt with this aspect in his Reasons for Sentence by saying:

"D1 has, I am told, a life-shortening complaint for which medical treatment is necessary and that is why he needed the money. But he left a paying job in Shenzhen so he had an income and presumably the means to pay by those lawful means."

6. We take the view that there is no merit whatsoever in this application. The judge's sentences were wholly appropriate and the application is dismissed. As there is no merit in this application, we shall order that three months of the time spent by the Applicant in custody shall not count towards his sentence.