HKSAR v. LAU YIK MING

CACC 186/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 186 OF 1999

(ON APPEAL FROM DCCC NO. 1298 OF 1999)

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J U D G M E N T

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Wong, J.A.:

1. The applicant, Lau Yik-ming, seeks leave to appeal against his conviction of one charge of burglary. For this offence, he was sentenced by His Honour Judge Longley in the District Court to imprisonment for 3 years. He also received a sentence of 18 months' imprisonment after pleading guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration. The sentences were ordered to be served consecutively bringing the total to 4 years and 6 months. The applicant also seeks leave to appeal against sentence.

2. The facts are simple and much of the evidence not in dispute. Madam Cheung went to bed at Flat A, 10th Floor, Lung Tang Court, Castle Peak Road in the early hours of 2 November 1998. When she woke up the next morning shortly after 7 a.m., she found that her handbag had been removed from her bedroom and was lying in the sitting room. The items particularised in the charge were found to be missing.

3. Earlier in the same morning at about 4:25 a.m., two police officers saw the applicant and another man in the vicinity of the building where the offence was committed. They shouted to them to stop but both men ran off. The applicant was subsequently intercepted while the other man managed to escape. Upon search, the applicant was found to have more than HK$12,000 and RMB978 on him. He admitted he was an illegal immigrant and his name was Cheung Kwan. He denied having committed the offence of burglary. From a record kept by the police, the applicant had admitted on an earlier occasion that his name was Lau Yik-ming.

4. The police lifted a palm print the next day from the outside of the sliding glass balcony door of the premises in question. On subsequent examination, the lifted print was found to match the sample print taken from the applicant. That remains the only link between the applicant and the burglary.

5. The applicant gave evidence. He said that at the time of arrest, he had just entered Hong Kong illegally. Before he came to Hong Kong, he had sold his hair salon in Shenzhen and that was why he had the money found on him by the police. He had changed some RMB into Hong Kong dollars in a grocery store.

6. On his arrival in Hong Kong, he came ashore and crossed the road. While he was waiting for a taxi, he saw a man running towards him being chased by the police. As he was an illegal immigrant, he also ran up the hill and tried to escape but was arrested by the police after he tried to swim away. He denied having committed the offence. He said that he had been arrested by the police in 1996 after he entered Hong Kong illegally. He had been charged with theft on that occasion but was acquitted after he alleged violence against the police. The police might therefore have a grudge against him as a result. He could not explain why his palm print was found on the balcony door of the premises.

7. The judge considered his evidence and rejected it. He found the case against the applicant proved beyond reasonable doubt.

8. The applicant filed a home-made grounds of appeal in which he stated:

"1. The judge was on the side of the witness and adjudge the case base on his own subjective point of view. Benefit of doubt which should go to the defendant was given to police.

2. In summing up, the judge said with prejudice, 'because illegal immigrants often do this kind of case in Hong Kong, thinking that I sneaked down to Hong Kong in the early morning of 3 November to sneak into his room to commit case.' Also the judge said in his summing up that illegal immigrant like me would not have that much money on me, it is believed that it was after sneaking to Hong Kong that money was stolen from others that there was so much money.

3. In summing up the judge said he did not believe that police would frame me for recalling previous grudge, thereby convinced that police would not tamper with fingerprints on exhibit that was used to prosecute me. However, the judge was too subjective. Is it to say police is not human being and they will not bear grudge, will not repay favour, is it to say all illegal immigrants would commit case and do bad things and therefore confirm someone had done the case. Could illegal immigrant not happen to have brought money down, that money brought in a big sum bound to have been stolen or robbed."

9. Before us today, he repeated the incident in 1996 when he was charged with theft after he entered Hong Kong illegally. He stressed that this was a case of revenge by the police because of the allegations he made against officers of Tsuen Wan Police Station previously.

10. The judge had considered the case and the evidence carefully and was satisfied beyond reasonable doubt that the applicant was the man or one of the men who had entered the premises in question and stole the contents in the handbag of Madam Cheung.

11. We find that there is no substance in any of these complaints. There is nothing to persuade us that the conviction is in any way unsafe or unsatisfactory. Accordingly, we refuse leave to appeal against conviction.

12. As regards sentence, the applicant said in his grounds of appeal against sentence as follows:

"I appeal against sentence because the sentence is excessively heavy. The judge held despise and prejudice against people who sneaked here from mainland. Also the important reason I ask for reduction of sentence is because my grandfather who is in his eighties is critically ill, my friend wrote and fax my lawyer asking him to relate that to me. My grandfather will not live long and I wish to get reduction of sentence to return to see my grandfather for the last time."

13. Before us today, he again urged us to exercise leniency so that he could return to the mainland to see his aged grandfather.

14. The burglary was committed at night in domestic premises while the occupants were sleeping. The judge quite rightly described it as a very serious offence. He also considered that burglaries committed by illegal immigrants were far too prevalent.

15. This was the second time the applicant had illegally entered and remained in Hong Kong and a sentence of 18 months is appropriate and in line with the guideline laid down by this Court in R. v. So Man King, [1989] 1 HKLR 142.

16. As the charges were separate and distinct offences, they ought to run consecutively and not concurrently. Having regard to all the circumstances of this case, we are satisfied that the total sentence of 4 years and 6 months, although slightly on the high side, is neither manifestly excessive nor wrong in principle. We are not prepared to interfere. The application for leave to appeal against sentence is also dismissed.