HKSAR v. MA FOO KWAI

IN THE COURT OF APPEAL

1997, No.246
(Criminal)

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J U D G M E N T

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

1. On 16th April 1997, this Applicant was convicted in the District Court of burglary and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. His Honour Judge Gill sentenced the Applicant to two years' imprisonment on the first charge and to twelve months' imprisonment on the second charge, to be served consecutively. The Applicant now seeks leave to appeal against his total sentence of three years.

2. The facts could not have been more straight-forward. The Applicant was seen climbing a wall at Hong Lok Yuen which led to a garden. This was just after midnight on 5th February 1997. Police were called. Shortly after this, the occupants of a house, near where he had first been seen, were returning home when they were confronted in their house by the Applicant who held a sharp object in his hand. The Applicant ran out and was caught soon afterwards by police who were already at the scene making a search of the area. The property he had stolen from the house was immediately recovered. The Applicant admitted the burglary offence and stated that he was illegally in Hong Kong. He told police that he had hidden on a cargo train from Shenzhen on 3rd February 1997.

3. The learned judge took into account that the Applicant was 18 years old, that he had a previous good character and that he had pleaded guilty at the first opportunity. He then imposed sentences which were well within the recognized tariffs for these offences and which also recognized the principles of totality.

4. We have considered the Applicant's grounds of appeal and, in particular, the letter that he wrote some time ago, he makes reference to the family's poor living conditions. Whilst we can feel sympathetic towards the Applicant's father, this is not a proper reason to interfere with the sentences imposed.

5. Leave to appeal is accordingly refused.