HKSAR v. TONG FUK SING

CACC216/99

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H E A D N O T E

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Criminal Law - Sentence - burglary - unlawfully remaining in Hong Kong without authority

Where Court of Appeal has laid down guidance for sentence, it is not sufficient for sentencing judge merely to pay lip-service to it before departing from it - sound reasons for such departure should be given

CACC216/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 216 OF 1999

(ON APPEAL FROM DCCC 148 OF 1999)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 24th March 1999, the Applicant was convicted of a domestic burglary, following a trial before Deputy Judge Tong Man in the District Court. The Applicant pleaded guilty to a second charge of remaining in Hong Kong without authority after having landed unlawfully in Hong Kong. He was thirty years old at the time of conviction.

2. On the first charge, the Applicant received a sentence of 18 months' imprisonment and on the second, 12 months' imprisonment of which only six months were ordered to run consecutively, making two years in all. The Applicant now seeks leave to appeal against conviction and sentence.

3. The whole of the prosecution's case was presented by way of admissions made under section 65C and statements read under section 65B of the Criminal Procedure Ordinance, Cap. 221. The burglary of a village house was not disputed nor was the fact that the Applicant's fingerprints were found on a chest of drawers in that house. The Applicant had made a statement under caution, maintaining that he had never been to the location of the burglary and stating that he did not know why his fingerprints would have been found inside the house.

4. However, in his defence at trial, the Applicant gave a completely different story. He explained how he had met someone who he knew only as "Ah Wah" in Shenzhen. Ah Wah led him to Hong Kong. On his second day in Hong Kong, the Applicant was told by Ah Wah that he was going to locate a friend and, for a time, the Applicant was left by himself. Ah Wah, in due course, came back to the place where the Applicant had been left. There was now another man accompanying Ah Wah, who brought some biscuits. Later, during the night, the Applicant was told that he would be found some clothes.

5. He was taken to a place where there were lots of houses. He was again told to wait on his own. He watched Ah Wah go into a house and he later followed inside the house after he had been signalled to do so. The Applicant explained how he went upstairs and was shown some clothes which were far too large for him. There was conversation going on and, when Ah Wah's friend appeared in the room, he indicated that they should speak more softly. The Applicant said that he then suddenly felt strange. He refused the clothes and put them back in the drawer. He then left the two men and went out of the house, closing the door behind him. He said that later the two others caught up with him and assaulted him. After that, he never saw them again.

6. In his assessment of the evidence, the judge took into account that the Applicant had originally denied ever going to the house where his fingerprints were found. The judge also found that the Applicant appeared to have given his evidence along rehearsed lines and, not surprisingly, he rejected the Applicant's account.

7. The Applicant's principal grounds of appeal complain that the judge came to the wrong conclusion, that he had insufficient time in which to answer questions at his trial and that he had no motive or intent to commit the crime. None of these matters contain any substance at all. The Applicant's account was well understood by the trial judge and it was rejected. The application, so far as it concerns conviction, is dismissed.

8. Turning now to sentence. The judge said this, in passing sentence, at page 11 of the appeal bundle:

            "This is a domestic burglary case. The starting point for a conviction after trial of this sort is 3 years.

            I accept that in this case, no violence was used and the victims were not disturbed in any way.

            I also accept that the defendant has a clear record. I also accept that the defendant has taken the initiative to agree on the entirety of the prosecution's case, thus saving a lot of court's time.

            I also accept the fact that he is suffering from some degree of disability. He has two fingers amputated and apparently has walking difficulties. His disability will undoubtedly increase the hardship he suffers during his imprisonment here in Hong Kong.

            For all these factors, I will give him a discount of 50 per cent. He shall go to prison for 18 months for the burglary charge.

            Also for the reason that he is suffering from some degree of disability, I shall reduce the normal tariff on an illegal immigrant pleading guilty to the 2nd charge, that is, I shall reduce his term from 15 to 12 months.

            The fact remains that the two offences he now stands for sentence today are separate offences. In principle, the terms should be served by the defendant consecutively.

            Taking into account the overall term that he is going to serve and that I will have to consider the totality principle, I now order that only 6 months of his term in the 2nd charge be served consecutively to the term he is going to serve on the 1st charge, and the remainder for the 2nd charge, that is 6 months, is to run concurrently with the 1st charge.

            The total term therefore is 2 years."

9. These Reasons for Sentence disclose a very considerable misunderstanding of sentencing principles. It is not sufficient for a judge to recite a principle, by paying mere lip-service to the guidance offered by the Court of Appeal, and then to depart from it without giving sound reasons for doing so. Of course, it is quite right to say that the starting point for domestic burglary is, in principle, three years' imprisonment. (See: R v Chan Yui Man, Crim. App. 36/88; A-G v Lui Kam Chi, (1993) 1 HKC 215). This burglary was, although the judge made no reference of any kind to it, aggravated by having been committed in the early hours of the morning at a time when the house was occupied and when anyone would clearly have expected it to have been occupied. The husband and wife who lived in this house woke up after the event to find part of their home had been ransacked during the night. It was therefore a bad case of its kind.

10. On the other side of the coin, as reasons which were said to justify a reduction in sentence, the judge, firstly, took into account a saving of court time. This was a straightforward case where little time was to be saved in any event and it was an immaterial consideration.

11. The judge, secondly, took into account the Applicant's clear record. This Court has repeatedly said that a clear record in the case of illegal immigrants is, for practical purposes, a matter of almost no consequence. (See: R v Lo Shui Lun, CACC 109/95). The present case is an illustration of the reason for that principle. The Applicant had only been in Hong Kong two days and these facts demonstrate that he was not slow to resort to burglary.

12. The judge took into account, thirdly, the Applicant's physical difficulties. However, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of this gravity. (See: R v Suen Shek and Others, (1988) 1 HKLR 524; R v Ho Mei Lin, CACC 217/96).

13. In the result, as the transcript shows, the trial judge reduced the sentence by 50%. This, in principle, is the kind of reduction given to a defendant who has not merely pleaded guilty but has given some considerable assistance to the police, such as providing information, and who has backed this up by giving evidence against the culprit. This Applicant had contested the case and, on the facts which were put before the Court below there was, so far as we can see, no entitlement to any discount of any kind.

14. The judge then went on to reduce his starting point of 15 months' imprisonment for remaining in Hong Kong without authority to 12 months, on account of the Applicant's disability. He then took into account the principle of totality and ordered one half of the 12 months to run concurrently with the sentence on the first charge.

15. It is perfectly correct to say that 15 months was the appropriate sentence for an offence of the kind in Charge 2 after a plea of guilty has been entered. (See: R v So Man King, [1989] 1 HKLR 142).

16. Furthermore, unless, for example, there exist some compelling circumstances, such as strong humanitarian reasons, this sentence should normally be imposed consecutively to the sentence imposed for the offence which accompanies it. HKSAR v Wong Ting Wah, CACC 153/97, was a similar case to the one we are presently considering. There, this Court considered the position where pleas of guilty had been entered to a burglary on a house in the New Territories committed by a man who was unlawfully in Hong Kong. The Court on that occasion said:

            "The judge properly took three years as the starting point and properly gave a one-third reduction for plea reducing that to two years. The sentence of 15 months was also a proper sentence to impose on the charge of unlawful entry.

            This Court has repeatedly said that it is proper that such sentence be made consecutive. We have observed on a number of occasions in the past that householders, particularly those who reside in the New Territories, are entitled to retire in the evening with a feeling that their house and their property therein is safe from the sort of depredation that persons such as the Applicant are committing. It would be wrong for the courts to exercise leniency in relation to offences of this type. It would be a failure to give what protection the courts can give to the residents of Hong Kong. The sentences, in our view, were not too severe and the application is refused."

17. It follows that the proper sentence this Applicant should have received in the present case was one of three years' imprisonment on the first charge and 15 months to be served consecutively on the second. The Applicant has, in other words, received under half the total sentence which should have been imposed.

18. We are unable to see any reason why there should be any departure from the normal tariff which is imposed for domestic burglary. This leads us to a consideration of section 83I(3) of the Criminal Procedure Ordinance which reads:

"(3) On an appeal against sentence the Court of Appeal, if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below, may -

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence or make such order as it thinks appropriate for the case (whether more or less severe) and as the court below had power to pass or make when dealing with him for the offence. ..."

19. The Applicant was fully aware of that provision, having signed a form which sets out the effect of the provision for him to read for himself. We made sure that he understood the provision by reminding him of it before this application was heard. The Applicant has put forward nothing which could affect the sentence.

20. In the light of the circumstances that we have already set out, we propose under the terms of section 83I(3) to quash the sentence of 18 months on the first charge and, in place of it, to pass a sentence of three years' imprisonment. We shall not disturb the sentence of six months consecutive on Charge 2 only because of the way in which this matter has come before the Court.

21. In the result, the sentence of 18 months which the Applicant originally received on the first charge is replaced by a sentence of three years. Six months will be served consecutively on the second charge, making a total of 3 1/2 years' imprisonment.

Representation: