HKSAR v. KONG TING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.798
(Criminal)

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J U D G M E N T

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

1. The applicant in this matter faced one charge of burglary and one of remaining in Hong Kong without authority. The burglary charge alleged that on 24th September 1997, in the New Territories, having entered as a trespasser the second floor of No.3 Wing Kei Garden, Yuen Long, he stole $3,486 Renminbi, $120 Hong Kong dollars and $20 U.S. currency. He pleaded guilty to those charges.

2. The admitted facts indicate that on the evening in question, he entered premises which were occupied by a Mr. Jeffery Palmer on the second floor of No.3 Wing Kei Garden. Mr. Palmer awoke at about 4 a.m. and saw the accused holding a torch moving around the bedroom. He jumped up and grabbed the accused. The police were informed on arrival. Upon arrival, they found the stolen cash in the rear pocket of the applicant's trousers and he was arrested. He admitted the offence.

3. When sentencing, Judge Line said:

"The sentence on the 1st charge of burglary is 2 years' imprisonment. The sentence on the 2nd charge, remaining here without authority, is 18 months' imprisonment. That 18 months will run consecutively to the 2 years."

He went on:

"The burglary of someone's home is a serious matter, especially if it occurs by night and the householder, as was the case here, is in his home.

I have taken a starting point of 3 years for that crime. I was tempted to increase that, but I have borne in mind the points made by your solicitor to the effect that no weapon was carried, you submitted quietly, and there was a lack of aggravating features other than those I mentioned. You pleaded guilty at the first opportunity. Therefore, I have given you a one-third discount resulting in the sentence of 2 years.

For the remaining in Hong Song without authority, the standard sentence is 15 months on the first occasion for an adult, 18 months if he has come back and done it again. That is the standard and conventional sentence after a plea of guilty, and I see no reason to depart from it. The only live question really here is whether that second sentence should be consecutive, or partly consecutive, or concurrent.

If it was the first time you had been here as an illegal immigrant and committed burglary, I would have probably overlapped it, adding 6 to 9 months to your sentence thereby. But this is the fourth occasion you have been here as an illegal immigrant. That demonstrates a complete disregard of our immigration laws.

In those circumstances, even though you pleaded guilty at the first opportunity and earned some credit thereby, there is absolutely no reason why you should not have the sentence of 18 months run consecutively."

4. We agree entirely with the observations of the judge. The offence of household burglary is a serious one. It was an appalling feature of life in areas such as Yuen Long that householders cannot go to bed safe in the knowledge that their home will not be broken into by illegal entrants in the course of the night.

5. The applicant, however, seeks leave saying that the sentencing court did not take into account that a snakehead had promised him that if he could enter Hong Kong he would be issued with an identity card. He says that his mother is ill with tuberculosis, that he committed the crime initially in an attempt to obtain food and that he only took money when he saw it lying on top of a bag of oranges. He also asks us to bear in mind that he did not put up any resistance and is now very remorseful. His plea of remorse we find difficult to accept. This was the fourth time he has entered Hong Kong as an unlawful entrant. One cannot help but ask how many times would he do so before he realizes that he should not commit such offences. The sentences imposed were ones which the judge considered with care. They were entirely proper overall. There is nothing that calls for our interference therewith. This application has been entirely without merit. We order three months' loss of time, that means three months of the time between the application for leave to appeal and today's hearing will not count towards sentence.