HKSAR v. CHAN CHI PING

IN THE COURT OF APPEAL

1997 No.184

(Criminal)

_______________

_______________

J U D G M E N T

_______________

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

1. The applicant in this matter faced two charges: one of aggravated burglary and one of remaining in Hong Kong without authority. The aggravated burglary was particularized as follows: that he on 7^th January 1997 at Yuen Long entered as a trespasser a building known as wooden hut No. 38 with intent to steal therein and at the time of entry had with him a weapon of offence, namely, a chopper. The second charge alleged that at the same time and place he was unlawfully remaining in Hong Kong without authority of the Director of Immigration.

2. The admitted facts was as follows:

3. At 1:25 a.m. on 7^th January 1997, while a Miss Ho was sleeping in her bedroom in Hut No.38 in Tin Shing Wai, Yuen Long, she was woken hearing the sounds of someone prizing open the door of the hut. She saw the defendant enter her bedroom wearing a grey sport suit which belonged to her. She asked him who he was and he told him he was an illegal immigrant. She immediately got out of bed and at that time she noticed he was holding a chopper in his right hand. She was asked by the applicant for employment or for money and she refused. He then started to search her handbag and her chest of drawers. At this point she took the opportunity to go to her father's hut next door and a report was made to the police. When the police team arrived shortly thereafter they were able with her help to apprehend the applicant.

4. The applicant, it seems, had taken three cans of Pocari and two boxes of Vitasoy.

5. The trial judge when sentencing said:

"The maximum penalty for the aggravated burglary charge is life imprisonment. In my view, the starting point for sentence should be 5 years' imprisonment. The normal sentence for the immigration charge is 15 months' imprisonment.

I have the benefit of submissions from Miss Chow who has given the court background information about the accused and the offence."

He later went on to say:

"It is very much to the accused's credit that he has pleaded guilty at the earliest opportunity.

Taking into account the facts of this case, the pleas of guilty and submissions made by Miss Chow, the accused is convicted on both charges and is sentenced to 3½ years' imprisonment on the 1^st charge and 15 months' imprisonment on the 2^nd charge. I order that these sentences be served consecutively."

6. The applicant today appeals against those sentences, it being argued by Mrs. Wacks, who appears for him, that the 57 months overall was an excessive sentence. It is submitted that the offences were committed by an illegal immigrant in a somewhat desperate position. This, it is suggested, is evidenced by the fact that he took only five soft drinks. It is submitted that while it was an aggravated burglary it was by no means an aggravated burglary of the worst kind. It is the principal submission that the totality was excessive given the nature and the circumstances of the offences.

7. This court is very much aware that the people of Hong Kong must be protected from offences of this kind. They are entitled to go to bed secure in their homes and not to have them invaded by persons seeking to steal whatever they can find therein. We are conscious also of the manifest risk of injury given that the applicant was carrying a chopper. We are, however, mindful of the admitted facts which indicate that he made no attempt to brandish the chopper or to use it to threaten. It could well have been that it was merely used to prize open the door of the hut. Further he showed no aggression after having asked for money and been refused and made no attempt to stop the victim from leaving the hut.

8. The two questions that concern the court are:

(i) Was the two years that was added to the normal sentence of three years for burglary when assessing the starting point too great an increase in the circumstances?

(ii) Should some of the 15 months have been made concurrent?

The court, conscious of the risk of injury that was involved and of the fact that aggravated burglary carries a maximum sentence of life imprisonment, are nonetheless satisfied that 2 years was too great an increase. The increase in the circumstances should not have been in excess of 18 months and the proper starting point for the offence should, therefore, have been 4½ years. This could properly have been reduced, on account of plea, by one-third to three years. We are satisfied further that, given the circumstances generally and in particular the youth of the applicant, some of the 15 months should have been made concurrent. We order therefore that the sentence of three years be imposed on the first charge and that nine months of the sentence of 15 months imposed on the second charge should be consecutive to the three years imposed on the first charge. The totality of sentence will, therefore, be three years and nine months.

9. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentences are varied accordingly.