HKSAR v. PINTO

CACC 1/2024, [2024] HKCA 942

On Appeal From [2023] HKDC 1826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2024

(ON APPEAL FROM DCCC NO 131 OF 2023)

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J U D G M E N T

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1.  I have decided to grant leave to appeal against sentence to the applicant on the papers. I consider it reasonably arguable that a sentence of 26 months’ imprisonment on a plea of guilty for the type of burglary alleged in this case was manifestly excessive.

2.  I am separately concerned whether the enhancement of 3 months’ imprisonment for the applicant’s status as a Form 8 Recognizance holder was justified. The policy of enhancing a sentence for such defendants/applicants was first adopted in HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206. However, the Court there also said, at [22]:

“We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation”.

It is arguable whether this crime is one meriting any such enhancement.

3.  I would also bring to the parties’ attention the case of HKSAR v Chau Man Ying (Unrep., CACC 439/2011, 15 May 2012) for the light it may shed on the applicant’s criminality. Although the buildings in question are different, one occupied, the other closed for redevelopment, the circumstances were that the applicant did not seek to go anywhere other than the roof, where he stole an item of minimal value.

4.  I give leave to appeal on the papers and grant the applicant an appeal aid certificate. I direct that the appeal to be listed within 3 months from the date of this judgment.