HKSAR v. CHIU KONG

CACC51/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 1999

(ON APPEAL FROM DCCC 1076 OF 1998)

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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 15th December 1998, the Applicant was convicted of two offences of domestic burglary following a trial before Judge Chua in the District Court. He pleaded guilty to remaining in Hong Kong without authority at the outset of the trial. He was sentenced to 3 1/2 years' imprisonment on each burglary, to run concurrently, and to 15 months' imprisonment for the immigration offence, of which four months was ordered to run consecutively making three years and ten months in all. The Applicant now seeks leave, out of time, to appeal against sentence.

2. The Applicant has provided two letters setting out his grounds of appeal, neither of these gives any good reason for the lateness of the application. The grounds of appeal deal in general terms with the facts of the case and put forward humanitarian reasons for a shorter sentence being appropriate for his case.

3. The Applicant should understand that for a single case of domestic burglary in Hong Kong the starting point for the purposes of sentence is almost invariably three years' imprisonment. For two offences the sentence will usually be slightly more. A one-third discount is given only to those who plead guilty.

4. As for the immigration offence, this is quite a separate matter. The judge would have fully justified in making the sentence of 15 months, which is the proper term of imprisonment for such an offence, to run consecutively. This court has, on frequent previous occasions, said that the sentence for such an offence should be made consecutive to sentences imposed for other offences. The overall sentence in this case can only be criticized on the ground that the Applicant should have received a longer sentence.

5. There is not the slightest merit in this application and it is dismissed. We shall order that, as this was a wholly unmeritorious application, three months of the time spent in custody awaiting this hearing shall not count toward the applicant's sentence.