HKSAR v. CHAN TAT WAH

CAAR13/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 13 OF 2001

(ON APPEAL FROM DCCC 516 of 2001)

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J U D G M E N T

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Hon Leong CJHC (giving the judgment of the Court) :

Leave to appeal against conviction in CACC439/2001

1. The defendant Tse Ki Wu was convicted in the District Court after trial of the 1st charge of burglary and was sentenced to 3 years' imprisonment. He now applies for leave to appeal against conviction in respect of the burglary charge. Tse had not advanced any grounds in his Notice of Appeal and today he addressed this court that he did not think that the trial was fair and he was wrongly convicted.

2. The prosecution's case against him was based on the circumstantial evidence which consisted of his being found by the police wearing only one shoe and having a torn T-shirt beside him. The other shoe of the pair he was wearing was found in the balcony of the victim who testified that he tore the T-shirt of the burglar when he struggled with the burglar. The trial judge inferred from these circumstances that the defendant had broken into the victim's premises. We are of the opinion that from the evidence accepted by the trial judge it was reasonable for the trial judge to draw the only inference that the defendant had intruded into the victim's premises. The conviction of burglary was fully justified. There is no substance in this application for leave to appeal against conviction. The application is dismissed.

Leave to appeal against sentence in CACC439/2001 and CACC457/2001 and Application for review of sentence in CAAR13/2001 and CAAR14/2001

3. There are two cases before this court: DCCC516/2001 and DCCC552/2001.

4. In DCCC516/2001 the defendant Tse Ki Wu who came from Fujian was convicted in the District Court after trial of the 1st charge of burglary and was sentenced to 3 years' imprisonment. He pleaded guilty to the 2nd charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and was sentenced to 12 months' imprisonment, consecutive. The total of 4 years' imprisonment was reduced by the trial judge by two months to 3 years and 10 months.

5. Tse Ki Wu has applied for leave to appeal against the conviction on the burglary charge. For the reasons we gave this morning, this application was dismissed. Tse Ki Wu has also applied for leave to appeal against sentence on the immigration charge. The ground of appeal advanced before us this morning by him is that his family is in Mainland China and has financial difficulty in coming to visit him in prison and he asks us to reduce his sentence.

6. In DCCC552/2001 the 1st defendant Ng Kit who came from Jiangsu pleaded guilty to one charge of aggravated burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to 2 years and 2 months' imprisonment on the 1st charge and 12 months' imprisonment on the 2nd charge, consecutive. These are sentences after a one-third discount had been made from their respective starting point. The trial judge had made a further reduction of 2 months from the total sentence. This defendant has not made any application for leave to appeal against sentence.

7. The 2nd defendant in the same case, Chan Tat Wah was sentenced to 2 years' imprisonment on his plea to the 1st charge of burglary and to 12 months' imprisonment consecutive on his plea to the charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. These are sentences which have been reduced by one- third. The trial judge in this case also gave a further reduction of 2 months on the total sentence of 3 years. The 2nd defendant applies for leave to appeal against sentence on the ground that he is the family's major breadwinner and he came here to find work. He misses his family.

8. The Secretary for Justice with leave from me has applied for a review of the sentences of all three of the defendants in these two cases.

9. As regards Tse Ki Wu's application for leave to appeal against the sentence of 12 months on the immigration conviction, the opinion of this court is that the sentence cannot be regarded as manifestly excessive. The normal sentence for an offence of this nature on a plea of guilty is that set down in R v So Man King and Others [1989] 1 HKLR 142 i.e. 15 months' imprisonment. No circumstances justifying a departure from this have been advanced by him. In any event, he should be satisfied that a lower than normal sentence had been imposed by the trial judge. His application must be dismissed.

10. As regards the 2nd defendant Chan Tat Wah in DCCC552/2001, his leave application is to appeal against the sentence of 2 years and 10 months on his burglary and immigration convictions. His grounds are simply that he sneaked into Hong Kong by swimming. On the way he lost all his possessions. Because he was hungry, he and the 1st defendant intruded into private premises to find food and water. In our opinion 2 years for domestic burglary after plea is in line with the authorities. No circumstances justifying a departure from the normal sentences of 15 months for the immigration charge are present in his case. The total of 2 years and 10 months in all the circumstances cannot be regarded as manifestly excessive. This application must also be dismissed.

11. We now come to the two applications for review of sentence. Both applications involved the same issues: the trial judge was wrong in principle to follow HKSAR v Rohrer [2001] 3 HKLRD 175 which is not applicable to Chinese mainlanders and the trial judge was wrong to have given a further two-month reduction to the sentences of the three defendants on account of their being Chinese nationals coming from the Mainland and because of their different cultural and social background and their language handicap which make it difficult for them to assimilate in prison, imprisonment in Hong Kong would be harsher to them than otherwise be the case.

12. The law on whether discount on sentence should be given to a foreigner who comes from a different social and cultural environment and who speaks neither English nor Chinese or any of the Chinese dialects, and thus finding it more difficult to cope with prison life in Hong Kong has been discussed in many cases both in the Court of Appeal and in the Court of First Instance in Hong Kong. It suffices for us to refer to only a few.

13. In AG v Rojas [1994] 2 HKCLR 69, the defendant came from Brazil and he spoke neither English nor any of the Chinese dialects. The Court of Appeal after referring to the case of R v Shipra [1988] 2 HKLR 493 said this:

"... we do not consider that a specific discount should be given for this aspect of mitigation but we do endorse the course adopted in Shipra which was commended to the judges when faced with problems of this kind in the future that while it is a factor to be taken into consideration, it is not one which would affect sentence to any substantial degree. This is something to be considered in determining the totality of the sentence."

14. In Shipra, the Court of Appeal preferred the following view in R v Garry La Verne Ohmert, Crim App No 213 of 1985:

"Whilst it is quite right to say that any body caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree."

15. The Court of Appeal in the same case endorsed the views of Rigby SPJ in R v Langridge, Crim App No 631 of 1969 :

"If a person chooses to commit an offence, likely to involve a term of imprisonment in a country other than his or her own country, he or she must not be surprised at the consequences that arise from his or her unlawful act in that alien country, and is not entitled to expect a more lenient sentence merely by reason of the fact that he, or she, comes from another country or from a different environment."

16. In the more recent case of R v Oweh, Cr App 208 of 1994, all the above three cases were referred to and the Court of Appeal refused to consider that the factor of being a foreigner called for any reduction in sentence. Rojas was followed in Saeid, HCMA875/2001, by V. Bokhary J. Her judgment is that no specific or substantial discount should be given because the defendant is a foreigner and it is for the defendant to show that his case comes within the criteria relating to dislocation set out in Rohrer for "foreignness" to be considered.

17. The position is therefore quite clear and that is, the "foreignness" of a defendant in the sense that he being foreign to the environments in a Hong Kong prison and likely to experience cultural and social difference and difficulty in communication, is only an aspect of the overall circumstances to be considered when a court determines the appropriate sentence to be imposed on him and it is a factor for which, depending on the circumstances of the case, little or no weight at all should be given.

18. It is suggested that in the recent case of Rohrer, the Court of Appeal had a different view on this issue and established the principle that discount should be given for this factor. This appears to have come from the following passage in the judgment of Keith JA at page 180 of the report where he, after quoting the trial judge's sentencing remarks that hardship experienced by the defendant as a result of being detained in a foreign jail deserved no sympathy, said:

There is a divergence of opinion as to whether that view is correct. Unfortunately the Court of Appeal has not spoken with one voice over the years. Their different pronouncements on the topic have been gathered together in Cross and Cheung, Sentencing in Hong Kong (3rd ed.) pp.302-303. For our part, we recognise that an offender has only himself to blame if he finds himself in prison in a foreign land. He is the author of his own misfortune. But the fact remains that a foreigner in a prison in Hong Kong may well find prison a harsher regime to endure than a prisoner who has lived in Hong Kong. Depending on his nationality, he might find himself isolated linguistically and culturally having to face an unfamiliar diet, and deprived of the opportunity of visits from his family and friends. The fact that prison could for these reasons by a harsher regime for a prisoner to endure is a factor which can, in an appropriate case, justify some reduction in the length of any sentence of imprisonment imposed. We think that that applies to a German-speaking Swiss-national, who has never been to Hong Kong before, serving a sentence of imprisonment in Hong Kong. In all the circumstances, we propose to reduce the applicant's overall sentence by another 3 months."

19. We have studied the above passage carefully. We do not find anything suggesting the establishment of a principle that in all cases, a defendant who is a foreigner should be, as a matter of course, entitled to a reduction in the sentence in addition to the discount he would have by reason of his plea of guilty and other valid mitigating circumstances. What is said in the above passage is that in a particular case, foreignness may be taken into account in the overall assessment of the sentence to be imposed, consideration for which must be dependent on the particular circumstances. Except that in Rohrer a specific and substantial discount of 3 months was given by reason of the particular circumstances of the case, Rohrer has not established any new principle which is not consistent with the previous authorities. The line of cases have all considered the effect of social and cultural difference on a foreigner prisoner and the language problem in communication. They find no justification for a reduction of sentence simply by reason of the foreigner having come to Hong Kong and committed an offence, who should take the consequences as he finds them, including any hardship he might experience in a foreign prison if he were caught and convicted. This principle applies to a foreign national as well Chinese nationals who come from the Mainland. As a matter of general rule, a person is not qualified to claim any discount by being imprisoned in a part of his own country even it is far away from his home. The fact that his family finds it difficult to visit him because of the distance involved is the defendant's own making. In any case, Chinese nationals from the Mainland should not be regarded under any circumstances as foreigners or treated as foreigners since Hong Kong is a part of China although Hong Kong has a different system. The Correctional Services Department have taken all possible measures in their management of prisons, such as ensuring that staffs are able to speak Putunghua, provision of Mainland newspapers and a reasonably suitable diet to assist a mainlander prisoner to cope with any hardship he might experience as a result of the cultural, social and language differences.

20. The three defendants all speak Putunghua and they have not come from remote provinces in China. They have not shown that being in a Hong Kong prison, they would suffer hardship which they would not otherwise have. Whatever that may have been decided in Rohrer, these defendants should not have benefited therefrom.

21. As regards the sentence of 12 months' imprisonment on the immigration offences in respect of the three defendants, the sentence may not be the same as that in So Man King but we bear in mind that the judge in imposing the sentence must have considered the totality principle and had taken into account that the overall sentence to justify the individual consecutive sentence of 12 months in each case. We are not prepared to interfere in this aspect.

22. We grant both applications for review and we set aside the further reduction of 2 months in each of the defendant's case. The end result is that the sentence of Tse Ki Wu is 4 years' imprisonment, the sentence of Ng Kit is 3 years and 2 months' imprisonment and the sentence of Chan Tat Wah is 3 years' imprisonment.