HKSAR v. LI MO KANG

CACC465/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.465 OF 2002

(ON APPEAL FROM DCCC 537 of 2002)

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

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

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

J U D G M E N T

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

Hon Gall J (giving the judgment of the Court) :

1. The applicant was convicted by H.H. Judge Poon in the District Court on 23 August 2002 of one charge of attempted burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. He entered a plea of not guilty to the offence of attempted burglary and a plea of guilty to the charge of unlawfully remaining in Hong Kong without authority of the Director of Immigration. He was sentenced on the same day to three years' imprisonment for the attempted burglary and 15 months' imprisonment for remaining in Hong Kong without lawful authority. Ten months of the sentence on the second charge were ordered to be served consecutively with the attempted burglary sentence. The total sentence amounted to three years and ten months.

2. The applicant sought leave to appeal the conviction in respect of the attempted burglary and the sentences in respect of both charges. On 11 April 2003 the Chief Judge refused him leave to appeal both the conviction and the sentences. He now seeks to renew his application for leave to appeal his conviction in relation to the attempted burglary charge and the sentences in relation to both charges out of time. By his application for leave dated 23 July 2003 and in his supporting affirmation of 30 October 2003 the applicant claims that time passed too quickly for him to appeal in time and that he misunderstood the notice of the refusal by the Chief Judge to grant him leave in respect of the notice relating to the time limit.

3. The evidence of the prosecution in respect of the attempted burglary charge was that the applicant was seen by two domestic helpers at large premises on The Peak. He was peering over the wall that surrounded the house having approached the house through the undergrowth up the hillside. One helper kept watch on the applicant whilst the other telephoned the police. The helper who kept watch gestured to the applicant not to enter the premises. The applicant was seen to climb over the wall of the premises into the garden then dash to the main door of the premises and try to open it. He was unable to do so because it was locked. The applicant then tried to climb the hillside adjacent to the premises but failed. He ran to the wall of the kitchen and tried to open a window. At some stage during his movement around the house he took an orange from an altar and ate it. The police arrived and found the applicant in the garden. He was unable to produce identification to the police and unable to communicate with them as he did not speak Punti.

4. The applicant, who was represented at trial by Mr Paul Kwong, a solicitor, gave evidence and said that whilst outside the wall he had gestured to one of the domestic helpers that he was hungry and that the response was a gesture he took as an invitation to enter. Today he tells us that there was a gesture from the domestic helper but it was to tell him to leave and he understood fully that they were trying to drive him away the premises. He nonetheless climbed over the wall. At the trial he denied trying the front door but said he touched the door in admiration of its craftsmanship. He admitted touching the kitchen window to see if there was food inside to satisfy his hunger. He admitted taking and eating the orange but claimed he was given permission to do so by one of the domestic helpers. He repeated that allegation this morning.

5. The judge found the two domestic helpers to be witnesses of truth upon whom she could rely. She found the applicant was evasive and not worthy of belief. She noted that parts of the evidence of the applicant relating to the gesture of invitation to enter claimed to have been given by one of the domestic helpers was never put to the prosecution witnesses nor was the claimed permission to take and eat the orange.

6. In his grounds of appeal, the applicant says that in giving evidence he forgot to mention two further points in his favour, that such was his fervent wish to visit Hong Kong, he would not have wanted to spoil it by committing an offence here; and that he was immature and innocent. Even had the applicant mentioned these two points at the trial, neither would have made any difference to the judge's verdict. The judge found the applicant to have been a thoroughly unsatisfactory witness. They were the only two written grounds of appeal and nothing said by the applicant to us this morning has amounted to any further grounds of appeal in respect of the conviction.

7. The judge fully considered all the evidence before her and the arguments of the solicitor representing the applicant. No criticism can be made of her findings either as to credit or as to fact.

8. As to the sentences, the learned judge adopted a starting point of three years for the attempted burglary. She did this by reference to the fact that domestic premises were involved though the relevant charge was one of attempted burglary. This is a proper approach. The sentence cannot be said to have been manifestly excessive. On the facts, there is little to distinguish between the attempt to burgle and the completed offence.

9. As to the second charge, the sentence of 15 months' accords with previous sentences passed by the courts even on a guilty plea. Again, the learned judge has not erred as a matter of principle.

10. The judge imposed an overall sentence of three years and ten months. Ten months of the 15-month sentence for the second charge were ordered to run consecutively to the sentence for the first charge. The judge did this taking into account the fact that there was no loss or damage to the property and no injury to any person. She also took into account the totality principle. The sentence she arrived at was not wrong in principle nor was it manifestly excessive.

11. Leave to appeal out of time against both conviction and sentences is refused.