HKSAR v. CHAN PO

CACC No. 290 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 19th May, the Applicant was sentenced by Judge Toh in the District Court to terms of imprisonment totalling 3 years 3 months. He had pleaded guilty to two charges: one of attempted burglary and one of remaining in Hong Kong without the lawful authority of the Director of Immigration. He was sentenced to 2 years' imprisonment on the charge of attempted burglary, and to 15 months' imprisonment on the immigration charge, to be served consecutively to the sentence on the attempted burglary charge. He now applies for leave to appeal against the sentences.

The facts

2. The Applicant came to Hong Kong clandestinely, i.e. otherwise than through an immigration control point, on 31st January. The attempted burglary was committed in the small hours of the following morning. He had climbed into a residential development on the Peak. He was seen hiding outside one of the houses. He ran off and, in the chase which ensued, he fell and injured himself. He had a bag with him containing a screwdriver, a pair of pliers, a wire-cutter and a torch. When interviewed, he admitted that he had intended to break into one of the houses, but he claimed that he was only going to take some food.

The appropriateness of the sentences

3. The judge took 3 years' imprisonment as her starting point on the charge of attempted burglary. That was in accordance with the tariff for burglaries of residential homes, although an aggravating feature of this attempted burglary was that it was committed at night while the occupants may have been there. She reduced the term to 2 years' imprisonment to reflect the Applicant's plea of guilty. She then imposed a consecutive sentence for the offence of remaining in Hong Kong unlawfully in accordance with the tariff for offences of that kind. There is no basis upon which this approach can be said to be wrong in principle.

4. The Applicant was 22 years old at the time of these offences. He had twice come to Hong Kong clandestinely before, and he had a previous conviction for burglary for which he had received a sentence of imprisonment. In his grounds of application for leave to appeal against sentence, he referred to his wife's pregnancy and claimed to be a reformed man. He has today told us of a tragic accident to his brother which caused his brother's death. That had occurred before the Applicant had come to Hong Kong, though he claims that it was not something which he had known about at the time. He also told us today of the death of his other brothers in the past, and he reminded us that his parents are elderly and look to him for support. These considerations do not render the sentences which the judge imposed unduly excessive, nor do his domestic circumstances amount to considerations of a humanitarian nature of sufficient weight to justify a departure from the guideline sentence for illegal immigrants laid down in So Man King [1989] HKLR 142. Sad though it was, the tragedy which befell his brother does not, in the circumstances, affect the appropriateness of the sentences which the judge imposed.

Conclusion

5. For these reasons, this application for leave to appeal must be refused.