HKSAR v. LAU SIU MAN

CACC 596/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Keith J. (giving the judgment of the court):

Introduction

1. On 20th November 1998, the Applicant was sentenced by Judge Poon in the District Court to terms of imprisonment totalling 3 years 9 months. He had pleaded guilty to three charges: one of burglary, one of attempted burglary and one of remaining in Hong Kong without the lawful authority of the Director of Immigration. He was sentenced to 2 years' imprisonment on each of the burglary charges, all but 6 months of which were to be served concurrently with each other, and he was sentenced to 15 months' imprisonment on the third charge, to be served consecutively to the sentences on the burglary charges. He now applies for leave to appeal against these sentences.

The facts

2. The Applicant came to Hong Kong otherwise than through an immigration control point on the afternoon of 14th July 1998. The burglaries were committed in the small hours of 15th July and 17th July. Both burglaries occurred at residential homes in the New Territories. During both the burglaries, the occupants were at home asleep. The occupants were not disturbed during the first burglary, but they were during the second. Most of the items stolen in the first burglary were recovered. Nothing was taken in the second burglary because the burglars fled when they were disturbed, and that is the reason why the Applicant was charged only with attempted burglary. After some initial prevarication, the Applicant admitted his guilt when he was interviewed. He admitted to being one of a gang of five who had carried out the burglaries, but he claimed that his role had simply been that of lookout.

Were the sentences unduly excessive?

3. The judge took 3 years' imprisonment as her starting-point on the two burglary charges. That was in accordance with the tariff for burglaries of residential homes for first offenders of full age, although an aggravating feature of these burglaries was that they were committed at night while the occupants were there. She reduced those terms to 2 years' imprisonment to reflect the Applicant's pleas of guilty. She had regard to the totality principle in ordering that 18 months of those terms be served concurrently with each other. She then imposed a consecutive sentence for the offence of remaining in Hong Kong unlawfully 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.

4. The Applicant was 18 years old at the time of these offences. In his grounds of application for leave to appeal, he referred to his father's recent death from cancer and his mother's mental illness. He went to Shenzhen to find work. No work was available, and he was persuaded to come to Hong Kong clandestinely with a friend to get work here. It was his friend who introduced him to the men who turned out to be this gang of burglars. Since he was alone in Hong Kong, he had no alternative but to go along with what they were going to do. There is no reason to doubt this version of events, which is not an unfamiliar one, but it is not one which renders the sentences which the judge imposed unduly excessive. Nor do the Applicant's family problems amount to considerations of a humanitarian nature of sufficient weight to justify a departure from the guideline sentence for illegal immigrants laid down in So Man King [1989] HKLR 142. Sad though they were, the tragedies which befell the Applicant's family occurred before the Applicant came to Hong Kong.

Conclusion

5. For these reasons, this application for leave to appeal must be refused. In the circumstances, we think that this application for leave to appeal was sufficiently unmeritorious to justify an order that two months of the time during which the Applicant has been in custody pending the determination of this application should not be reckoned as part of the time he has served towards his sentence.