HKSAR v. LI LIK YAU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1024 OF 1997

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J U D G M E N T

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1. The appellant was convicted on 15th October 1997 of three counts of theft and one count of Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to five months' imprisonment on each of the theft charges, to be served consecutively, and 15 months' imprisonment on the charge of Remaining in Hong Kong without the Authority of the Director of Immigration, to run consecutively with the 15 months imposed in respect of the theft counts.

2. The grounds of appeal raised by Mr Wong are that firstly the three counts of theft ought not to be considered consecutively as they formed part and parcel of one expedition and was one group of offences which were interconnected with one another. He cites the case of R. v. Wong Kwong Yin [1998] HKC 844 as Authority for that proposition. Miss Yang argues that in the case of Wong, the theft from a vehicle took place at one place in a number of vehicles, whilst in the case presently before me, they were thefts in respect of two charges from vehicles at separate locations and in respect of the third charge, from a container which was being used as an office, and from a locked locker within that container.

3. I am satisfied, in respect of those facts, that these do not comprise one expedition, that they were three separate expeditions to three separate places and that the learned Magistrate was entitled to deal with them by making the sentences in respect of these charges consecutive. I can find no fault with the sentence of five months' imprisonment in respect of each of these charges other than to comment that they may be too low.

4. Similarly, no complaint can be made in respect of the 15 months' imprisonment imposed in respect of the fourth count of unlawfully remaining in Hong Kong. Given the guidelines laid down in the case cited by the Magistrate of R. v. So Man King [1989] 1 HKCR 142, 15 months is an entirely appropriate sentence.

5. The only issue which remains is the argument that the 15 months imposed in respect of the three theft charges ought not be wholly consecutive to the 15 months imposed on the fourth charge. In his reasons for sentence, the learned Magistrate clearly envisaged the totality of the sentence as being one deterrent, not just to illegal immigrants at large, but to the appellant himself. I cannot say that it is right to do so in respect of a person with an otherwise clear record. It seems to me that the totality of 30 months, in the circumstances of this case, is too high. The appeal against sentence is allowed to the extent that the sentence of imprisonment in respect of the total 15 months for the three counts of theft should overlap that of the unlawfully remaining in Hong Kong for a period of five months, making in all a sentence of 25 months' imprisonment. To that extent the appeal is allowed, the sentences set aside and the sentence which I have just set out imposed in lieu thereof.