HKSAR v. A person unknown

CACC 511/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 511 OF 2003

(ON APPEAL FROM DCCC NO. 696 OF 2003)

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J U D G M E N T

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Hon Woo VP (giving judgment of the Court):

Introduction

1. The applicant faced 2 charges before Judge Day in the District Court. The first charge was burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. The second charge was the applicant's remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to Section 38(1)(b) of the Immigration Ordinance, Cap 115.

2. The applicant pleaded guilty to the second charge and was convicted after trial by the judge of the first charge. The judge imposed a sentence of 18 months' imprisonment on the first charge and one of 15 months' imprisonment on the second charge, consecutive.

3. The applicant gave notice of application for leave to appeal against both the conviction on the first charge and to appeal sentence on both charges. On 15 April 2004, his applications were refused by Stock JA. The applicant has renewed his applications before this Court.

Conviction

4. The particulars of the first charge were that on 18 June 2003, the applicant entered as a trespasser into a building known as the container office near New World Centre, No. 18-24, Salisbury Road, Tsim Sha Tsui, Kowloon, with intent to steal therein. The container office was situated within a construction site for building an extension to the Mass Transit Railway. Before the judge, the parties admitted, pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 that at about 7:00 pm on 17 June 2003, the person in charge of the container office secured the steel door of the office by attaching a padlock to the metal flap of the bolt. At about 4:55 am on 18 June 2003, the flap of the bolt and the padlock had been prised open, and the office had been ransacked. A wrench and a T-shaped manhole cover key were found outside the office.

5. PC49740 gave evidence. He was on patrol with two colleagues outside the site. That was about 4:40 am on 18 June. He heard metallic noises coming from inside the site. He looked through a gap in the surrounding fence and saw that the door of the container office was open. He saw the shadow of a person moving around inside the office, and so he and his colleagues hurried to the site entrance. After they arrived, he saw a man come out of the container office. They intercepted the man who turned out to be the applicant. They asked what he was doing there and he did not reply. They escorted him back to the office and found the broken padlock and tools on the ground, and saw that the office had been ransacked. The applicant declined to say what he was doing there. He was arrested and, when searched, had nothing on him.

6. The applicant chose not to give evidence or call any witness. Indeed, he did not disclose his name or any particulars about himself because, as he alleged, of his "absence of memory", so that he has remained as "a person unknown" on the charge sheet, before the judge and before this Court.

7. The judge accepted the evidence of PC49740. He found that it was the applicant whom the officer saw inside the office earlier on and that the applicant had entered the office as a trespasser. Although no stolen property was found on the applicant, the judge drew the inference from all the evidence before him that the applicant had the intent to steal in the office.

8. In the applicant's notice of application for leave to appeal against conviction, the applicant only raises a challenge on facts by way of telling a story different from that described in the evidence of PC49740. He said he was approached by three police officers outside the site in question. He was asked if he had any proof of identity and he said he had none. He was told to squat down and he did. The officers started to kick him in the abdomen and assaulted him. One of the officers kept watch over him and the two other officers ran into the construction site to steal. After about 10 minutes, the three officers took him into the container office. There they assaulted him again. Then he was taken to the police station.

9. Apart from the fact that the story now told by the applicant is fantastic and incredible, he chose not to testify about it before the judge at the trial. That was his choice: he was fully entitled to remain silent and see how the prosecution prove its case. When we asked him as to why he did not testify, he started to complain that his defence counsel had deceived him. This point was, however, not mentioned in any of his grounds of appeal. There is not a single ground upon which we can admit this story in our consideration, let alone accept it.

10. The application for leave to appeal against conviction is absolutely without merit and must be dismissed.

Sentence

11. As regards sentence, the judge appeared to accept the submission of counsel for the applicant that the applicant broke into the container office looking for food or money, and that nothing was taken and little damage was caused. Although the judge had stated, correctly, that the starting point of sentence for burglary of non-residential premises is generally 21/2 years' imprisonment, he reduced the starting point to 18 months and imposed that as the sentence on the applicant for the first charge. As regard the second charge, the judge imposed a sentence of 15 months' imprisonment, consecutive, which is the normal sentence for a plea of guilty to unlawfully remaining in Hong Kong.

12. What we can only say on the sentences is that the sentence of 18 months for the burglary charge is a very large reduction from the starting point of 2 1/2 years. If anything, the judge can only be said to be too lenient to the applicant.

13. The only ground of appeal raised by the applicant on sentence is that he had sneaked into Hong Kong illegally for the first time and he had no previous conviction in Hong Kong. He states that he should be repatriated to the Mainland instead of being sentenced so heavily.

14. For a first time illegal entrant into Hong Kong from the Mainland, the practice seems to be that he will be sent back to the Mainland without being brought to court. However, the practice only applies to one who has not committed any offence in Hong Kong during his stay. As we said before, the only thing that can be said about the sentences imposed by the judge is that they are too lenient. There is not a scintilla of reason for us to interfere with the sentences imposed by the judge, which are neither wrong in principle nor excessive.

15. The application for leave to appeal against sentence is dismissed.

Loss of time

16. In view of the total lack of substance in the applicant's applications, we consider that this is a proper case for us to consider whether we should order a loss of time. We asked the applicant to address us on this subject, and he merely reiterated what he said on conviction.

17. The only basis in the present case militating against a loss of time order is that the applicant may not know or understand that on his applications being found to be unjustified we have the power to order a loss of time pursuant to section 83W of the Criminal Procedure Ordinance. However, this power is specifically referred to in printed form in the notes contained in Form XI on which the applicant had written his grounds of appeal. Moreover, the application before us is a renewed application. On 15 April 2004, the applicant appeared before Stock JA who refused his applications and advised him that he had the right to renew his applications. Stock JA also verbally warned the applicant that he might be subject to a loss of time order if he renewed his applications to this Court. There was also a warning of this power to order loss of time contained in the notice of renewal of application signed by the applicant on 21 April 2004. Taking all these circumstances into account, and in particular, considering that the sentence for the first charge imposed by the judge was too lenient, and that the applicant had been verbally warned by Stock JA, we consider that this is a proper case for us to order a loss of time. The applicant's applications and renewed applications are entirely without substance and utterly unjustified. We consider it appropriate to order a loss of three months from the time that he has served pending the determination of his applications for leave to appeal, and we so order.