HKSAR v. LAU PANG

CACC 252/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 252 OF 2004

(ON APPEAL FROM DCCC NO. 474 OF 2004)

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

1. This is an appeal against sentence, leave having been granted by Yeung JA on 10 September 2004.

2. The appellant was convicted on his own plea of a charge of domestic burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 and a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap l15, before Judge Day in the District Court.

3. The burglary charge was a joint charge against the appellant and two other persons.  They were each charged with the immigration offence separately.  In the re-amended summary of facts prepared by the prosecution, which the appellant and the two others admitted when they pleaded guilty, the facts in support of the charges can be seen.

4. On 12 March 2004, Mr Chan left his house in the village in Lok Ma Chau, New Territories, at noon.  At about 2 pm, Madam Fu, who lived next door to Mr Chan, heard noises coming from Mr Chan’s house.  She saw three men sneaking into Mr Chan’s house.  She telephoned the police to inform them and give descriptions of the three men to them.  About 20 minutes later, three police officers went to the scene and caught the three defendants not far from the house.  They were each carrying a plastic bag holding the items that were later identified by Mr Chan as having been taken from his house, namely eight plastic bags, one torch, one radio, one pair of trousers, one underpants, one coolant, two soaps, one essential oil, five lottery tickets, one screwdriver, some food, one cutter, one towel, one T-shirt and one watch.

5. In sentencing, the judge had the following to say about the appellant, who was the 2^nd defendant before him:

“6.        He is 37 and has a clear record.  He is married with a 6-year-old child and elderly parents to support.  He was a mining engineer in China until he lost his job 8 years ago, and it appears that he had obtained qualifications from a mining institute.  Having lost his job 8 years ago, he was reduced to selling fruit and vegetables on the street and earning a little money as a result.  He came to Shenzhen looking for work and was persuaded that if he came to Hong Kong with his qualifications he may be able to find work here.

7.         His story may well be true.  His remorse in court is plain for all to see, and he has written a letter to the court in which he apologises for what he has done, explains his situation in China, and expresses his deep remorse.  He apparently arrived in Hong Kong the day before this offence and joined in the burglary because he was very hungry.  The prosecution have confirmed that the majority of the property in the bag he was carrying was food.

…

9.         Those who burgle domestic premises in Hong Kong are normally sent to prison and the sentences tend to start at around 3 years.  I accept that this burglary was not at night and that the premises were unoccupied and that no force was used to get in.  Nevertheless, 3 years is the appropriate starting point for such a burglary.  I propose to reduce that by a third to recognize the guilty pleas tendered by the three defendants.  On the 1^st charge, they will all go to prison for 2 years.

…

11.        The 2^nd defendant has impressed me with his letter to the court and by his very plain remorse.  A prison sentence I am afraid is inevitable and it must be consecutive, but I propose to reduce that to 12 months’ imprisonment [for the immigration offence].”

6. The total sentence imposed on the appellant was therefore 3 years’ imprisonment. 

7. The appellant has written a number of letters to this Court, enclosing letters from his father and his wife.  These letters confirm what the judge said when passing sentence, that the appellant’s parents are respectively 79 and 78 years of age and that the appellant lost his job 8 years ago and had been reduced to become a hawker earning a small income.  These letters also disclose a tragic circumstance, which only transpired after the judge had passed sentence on him.  On 24 June 2004, the appellant’s only son, aged eight years, was drowned in the floodwaters of Hunan Province.  The fact was confirmed by official papers stating that as a result of the death, the household registration of the boy was cancelled on 1 September 2004.  The family has been seriously stricken with grief.  The appellant’s wife fainted and only regained her consciousness after two days of hospitalisation.  She remained in hospital for eight days.  The appellant also fainted when he heard the news as revealed by the letter from his father.

8. The appellant has raised a number of grounds of appeal against the sentence.

9. We need to deal with these grounds but very briefly, because they are not sustainable.

10. The appellant pleaded guilty to the burglary charge and admitted the facts as summarised by the prosecution.  It is not open for him on appeal to say that he stole food out of the basic instinct of a human need to struggle for life.  This is especially so when he admittedly recognises that depriving others of their possession is wrong.  His situation that he was hungry at the time had been fully taken into account by the judge.  The judge also accepted that the burglary did not occur at night, the burgled house was unoccupied and no force was used to get in.  However, 3 years’ imprisonment being the appropriate starting point for sentence has been well settled in AG v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Ng Wai Hing [2003] 2 HKLRD 338.  The judge had also taken into account the appellant’s personal and family circumstances when passing the sentence.

11. In relation to the immigration offence, a term of 15 months’ imprisonment after a guilty plea has been settled as the appropriate starting point in R v So Man-king & Ors [1989] 1 HKLR 142.  It has also been well settled that the sentence for burglary should run consecutively to the sentence for unlawfully remaining in Hong Kong: HKSAR v Kei San Man & Anr, CACC 246/1999 (10 September 1999, unreported).

12. All in all, we do not discern any mistake made by the judge when passing the sentence, totalling 3 years, on the appellant.

13. Nonetheless, by reason of the particularly tragic circumstances now disclosed to this Court, we consider that there is ground for reducing the sentence.

14. In So Man-king, the Court of Appeal, after laying down the basic guideline of 15 months’ imprisonment for unlawfully remaining in Hong Kong, had this to say, at page 145E:

“The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate.”

15. In the present case, the appellant went to Shenzhen and illegally sneaked into Hong Kong for the purpose of finding work, in view of the dire financial predicament that he and his family faced.  He left his family in Hunan with aged parents and a wife to look after them and the schoolboy son.  With the drowning of the child in the floodwaters, the whole family has been overwhelmed with grief and his wife has fallen ill and lost a significant amount of weight.  She has become too weak to look after herself or to work, let alone look after the aged couple.  The health of the appellant’s mother has also taken a very bad turn, missing both her son and grandson.  In the exceptional circumstances, we consider that this is a proper case for the court to show mercy.  However, we have to take into account the necessity of maintaining law and order and protecting Hong Kong residents from intruders.  We have done our best to arrive at a proper balance.  What we can do utmost in the circumstances is to reduce the sentence by ordering that the 12 months’ imprisonment for the unlawfully remaining in Hong Kong offence to be served concurrently with the sentence for the burglary.  In the result, the total sentence that the appellant will have to serve is 2 years’ imprisonment.