HKSAR v. YEUNG KWOK WAI

CACC 114/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 1999

(ON APPEAL FROM DCCC 1420 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty before H.H. Judge Longley in the District Court to one count of burglary and one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.

2. He was sentenced to 2 years imprisonment on the 1st count and also 2 years imprisonment on the 2nd count consecutive to the sentence on the 1st count. He now seeks leave to appeal against sentence.

3. The written grounds of appeal submitted by the applicant essentially state that he came from a poor family and he had come to Hong Kong to look for work but was unsuccessful. He considered that the sentence imposed by the District Judge too severe. In addition he mentions today that the sentence for the 2nd charge is too high because the normal sentence is 15 to 18 months imprisonment.

4. The applicant entered Hong Kong illegally on 28th October 1998 and two days later on the night of 30th October 1998 he broke into the home of the victims in Tuen Mun, New Territories while the family was asleep. He stole $1,300 cash, an identity card and a mobile phone. He was caught during a routine identity card check when he produced the stolen identity card to the police. He had one previous conviction for burglary and three previous similar unlawfully remaining in Hong Kong convictions, the last of which was in October, 1997 and for that conviction he was sentenced to 18 months imprisonment. The judge in sentencing the applicant said that even 18 months imprisonment had not deterred the applicant from returning to Hong Kong illegally and he considered that 2 years for his 4th similar offence was an appropriate sentence. The Judge adopted 3 years as a starting point for the burglary charge reducing it to 2 years for his plea. He ordered the sentences to run consecutively.

5. It may be appropriate that we should refer to what Power, V.-P., observed in HKSAR and Wong Ting-wa CA 153 of 1997, when he dismissed the appeal of an unlawful entrant against a sentence of 2 years for burglary and 15 months for unlawfully remaining in Hong Kong. The Vice-President had this to say:

"This court has repeatedly said that it is proper that such sentences be made consecutive. We have also observed on a number of occasions in the past that householders, particularly those who reside in the New Territories, are entitled to retire in the evening with a feeling that their house and the property therein is safe from the sort of depredation that persons such as the applicant are committing. It would be wrong for the courts to exercise leniency in relation to offences of this type. It would be a failure to give what protection the courts can give to the residents of Hong Kong. ..."

6. In the light of this and the applicant's previous convictions, the Judge was more than justified to impose the sentences he imposed. The application for leave against sentence must be refused.