HKSAR v. YUEN KAPSHUN

CACC 241 /2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

CRIMINAL APPEAL NO. 241 OF 2005

(ON APPEAL FROM DCCC 382 OF 2005)

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DECISION

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1.  The Applicant has applied for leave to appeal against sentence.  He was charged with a count of burglary, the particulars of offence being that he having entered a residence as a trespasser on 2 March 2005, attempted to steal.  He was also charged with a count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2.  The Applicant pleaded guilty before H.H. Judge Toh to both charges. 

3.  In respect of the first charge, he was sentenced to a term of imprisonment of 2 years, the judge having applied a starting point of 3 years and having reduced it by a third to reflect his plea.  The judge remarked that as it was the Applicant’s third conviction for burglary, she would have been justified to increase the starting point beyond three years.  

4.  In respect of the second charge, he was sentenced to a term of imprisonment of 18 months on his plea of guilty.  The judge remarked that the Applicant had previously been given a chance but had not been deterred. 

5.  The terms of imprisonment were ordered to be served consecutively.  The total sentence was therefore 3 years and 6 months.     

6.  I have read the Applicant’s grounds of appeal.  In respect of the 1^st charge, there appears to be an attempt to argue that he should not have been convicted and sentenced for burglary as he was only attempting to steal.

7.  The Applicant had been legally represented below and would have been aware of the charges he faced.  In any event, his submission is not valid as in law the offence of burglary can be established if a person enters premises as a trespasser and attempts to steal. 

8.  The Applicant has advanced no grounds in respect of the sentence passed on the 2^nd charge.  Although the starting point on a plea of guilty is usually 15 months, the judge was entitled to increase it by reason of previous convictions (R v So Man-King [1989] 1 HKLR 142, 145). 

9.  Accordingly I can see no arguable grounds on this application and I refuse leave.

10.  I would remind the Applicant that he is entitled to renew his application for leave to appeal to the Court of Appeal, but the effect of my refusal of leave today is that the Court of Appeal would be free to direct, if it considers appropriate, loss of time, in other words, that the time under which he is in custody pending the determination of his appeal be excluded from reckoning as part of the term of sentence to which he is subject.