HKSAR v. KEI SAN MAN AND ANOTHER

CACC 246/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 246 OF 1999

(ON APPEAL FROM DCCC NO. 20 OF 1999)

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. The two Applicants are illegal immigrants. They came clandestinely into Hong Kong from the mainland otherwise than through an immigration control point. Within a few weeks of their arrival in Hong Kong they were arrested. They were charged with an offence of aggravated burglary and one of burglary. At their trial in the District Court they pleaded not guilty. They were convicted by Judge Wilson, and on 29th April 1999 he sentenced them to 21/2 years' imprisonment on each charge, to be served consecutively to each other.

2. They also pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration. On that charge, they were sentenced to 15 months' imprisonment, to be served consecutively to the terms of imprisonment imposed on the burglary charges. The resulting sentence therefore totalled 6 years' and 3 months' imprisonment in all for each of them. They now apply for leave to appeal against those sentences.

The facts

3. The burglaries were both committed on the same night. They involved non-residential premises. The first of the premises was a two-storey building in a garden centre which was used for storage. Although the two rooms on the upper floor of the building were used by staff for sleeping and resting in, it does not look as if the Applicants were aware of that when they climbed over the wall into the garden centre. When they were subsequently interviewed by the police, the Applicants claimed that they had been sleeping rough and were hungry. They were with a third man, and they both said that while they were in the building, the 1st Applicant took a knife, a pair of jeans and a pair of sports shoes.

4. The second burglary took place at a nearby school. The three men gained access to the school again by climbing over a wall. When the 1st Applicant was subsequently interviewed by the police, he admitted taking the knife which he had stolen earlier that evening into the school. That was the basis on which the Applicants were charged with aggravated burglary. No damage was done to the school except for what is described in the summary of facts as "signs of ransacking at the enquiry counter". We treat that as meaning that the counter was in disarray. The 1st Applicant admitted being responsible for that.

5. The three men were seen climbing over the wall out of the school by a police officer. He alerted his colleagues. The three men were all carrying bags. Once the police made their presence known, the men ran off. Only the 1st Applicant was caught, and in his bag were found a number of domestic articles and items of clothing which had been stolen from the school, none of them of any great value. The 1st Applicant had in his waistband a cutter and a bunch of rope which suggests some degree of planning for what they did that night. However, the 1st Applicant led the police to where the 2nd Applicant and the third man had been living. The third man managed to escape, but the 2nd Applicant was arrested.

The approach of the judge

6. In his Reasons for Sentence, the judge said that he regarded the role which the 1st Applicant had played in these burglaries as more serious than that of the 2nd Applicant. However, he noted that the 1st Applicant had initially been co-operative with the police. That co-operation had resulted in the discovery of the earlier burglary and the apprehension of the 2nd Applicant. The judge regarded those factors as "cancelling each other" out. He took 3 years' imprisonment as his starting point for each of the burglaries. The imposition of consecutive sentences of that length would have led to what the judge described as "a high result on the totality principle". He therefore reduced each of the sentences by 6 months' imprisonment, but ordered that they and the sentence for the immigration offence all be served consecutively to each other.

The appropriate sentences

7. The sentence of 15 months' imprisonment for the immigration offence cannot be faulted. It was in accordance with the tariff in So Man King [1989] 1 HKLR 142, and took into account the Applicants' pleas of guilty. The judge was also correct to make the sentence for the immigration offence a consecutive one. It has repeatedly been said that sentences for immigration offences of the kind committed by the Applicants should normally be consecutive: see, for example, Wong Ting Wa (CA 153/97) and Tong Fuk Sing (CACC 216/99) There were in this case no compelling circumstances, such as strong humanitarian reasons, which warranted either a reduction in the tariff or a departure from the rule that the sentence should usually be consecutive. Nor was there anything wrong in principle about the imposition of consecutive sentences for each of the burglaries. Although they occurred within a short time of each other, they were, after all, separate burglaries at different premises.

8. The question which has caused us some concern is whether sentences totalling 5 years' imprisonment for the two burglary charges were too long. We note that the tariff for burglaries of non-residential premises where a defendant has pleaded not guilty is 2 1/2 years' imprisonment. If one ignores the fact that the burglary of the school was an aggravated burglary, the judge's cumulative starting point of 6 years' imprisonment was higher than the tariff. As far as the first burglary was concerned, we place that burglary at the lower end of the scale for non-residential burglaries. As we have said, the Applicants had no reason to think that anyone slept in the building, the value of the property stolen was minimal and no damage was caused to the building. The burglary of the school was more serious. It was, after all, an aggravated burglary, but that may simply have been because the knife, which had been stolen earlier that evening, was still on the 1st Applicant, rather than because he intended to display it or use it. On that footing, the burglary of the school was an aggravated burglary in the technical sense only. It has to be said that the school was not completely deserted because the caretaker was there, but we acknowledge that he was not aware until later that night that a burglary had taken place. Against that, the property taken, again, was of minimal value and no damage was done.

9. We need not consider further the starting points taken by the judge for the two burglaries because in the final analysis the question which we have to ask is: was the imposition of a cumulative sentence of 5 years' imprisonment commensurate with the gravity of the whole of the Applicants' criminal conduct that night and its just deserts? In our view, it was not. Both the burglaries were part of one spree. A cumulative sentence of 5 years' imprisonment was, in the circumstances, manifestly excessive. We believe that a cumulative sentence which reflects the gravity of the Applicant's wrongdoing that night was one of 3 1/2 years' imprisonment. Having said that, there was no mitigation personal to the Applicants which affected that. The Applicants, it is true, had no previous convictions in Hong Kong, but that is hardly surprising since they had only been in Hong Kong for a few weeks. And the co-operation which the 1st Applicant gave to the police has already been reflected by treating him in no worse position than the 2nd Applicant.

Conclusion

10. For these reasons, we grant the Applicants leave to appeal, and we give effect to our view that the cumulative sentence for the two burglaries should be 3 1/2 years' imprisonment by ordering that 18 months of the sentences imposed on charges 1 and 2 be served concurrently with each other. The sentence of 15 months' imprisonment for the immigration offence will still be served consecutively to those sentences. The net effect is that the sentences for each Applicant now total 4 years' and 9 months' imprisonment. To that extent, the Applicants' appeals against sentence are allowed.