HKSAR v. LEUNG MUN KU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.27
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 5th January 1998, the Applicant was found guilty of attempted burglary following a trial before Judge Jackson in the District Court.

2. The Applicant had attempted to enter a house at about 3 o'clock in the morning on 2nd October 1997, while the occupants of the house were asleep. They were awakened by a sound and the Applicant was seen at the first floor level trying to break in. When he was shouted at by one of the occupants, at that stage he jumped from a 10-foot high wall that surrounded the garden, leaving behind the pair of shoes that he had presumably been wearing. Not surprisingly, the Applicant hurt himself and police were able to find him nearby suffering from considerable pain. He was, of course, wearing no shoes. The Applicant confessed to having just sneaked into Hong Kong and said that he was trying to find food at the house.

3. The Applicant's account of finding himself inadvertently in the garden of this house, and seeking to get away when he saw one of the occupants come out of the house, was hardly surprisingly rejected by the judge who gave cogent reasons for doing so which are set out in the Reasons for Verdict. However, the Applicant has now abandoned his appeal against conviction and he pursues only his application in respect of sentence.

4. The sentence he received was two years' imprisonment for attempted burglary. He received a consecutive sentence of 15 months for unlawfully remaining in Hong Kong without authority, and to that charge he pleaded guilty.

5. His grounds for seeking a reduction in the sentence are basically that he thinks that the sentence was too long. He had some difficulty in setting out the rest of his complaint in any comprehensible fashion, but it seems to come to this. He had every intention of pleading guilty in the Magistrates' Court but, when he found that his case was being sent to the District Court, he got rather frightened and decided then to plead not guilty to the offence in the hope, as he put it, of getting himself off the hook. If he could do that he would then only be sentenced for the one offence of remaining in Hong Kong without authority which would give him a shorter sentence. At very worst he felt he would get the same sentence whether he pleaded guilty or not guilty to the attempted burglary and perhaps the sentence for the other offence of remaining in Hong Kong might be made concurrent.

6. We are perfectly satisfied that the judge did impose a proper sentence upon this Applicant. As the judge pointed out to him, a three-year sentence would normally be expected for a burglary of domestic premises. He reduced the starting point to take account of the fact that this was an attempt at burglary and that he was satisfied that the Applicant was only looking for food.

7. There is no merit in this application.

8. For this reason the application is dismissed and we shall order that one month of the time that the Applicant has spent in custody awaiting this hearing will not count towards his sentence.