HKSAR v. LEE HOI

CACC 385/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 385 OF 1998

(ON APPEAL FROM DCCC 577/1998)

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J U D G M E N T

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

1. The Applicant was convicted of one charge of burglary and one charge of remaining in Hong Kong without the permission of the Director of Immigration after a trial in the District Court before Deputy Judge Fung (as he then was). He was sentenced to a total of 35 months imprisonment. He now seeks leave to appeal against his conviction on the burglary charge and the sentences which were imposed.

2. Particulars of the burglary were that the Applicant on 11th April 1998 entered premises at Wong Yu Tan Tsuen, Tai Po and stole a pair of blue jeans.

3. The owner of the premises which were a hut returned to the hut with his girl friend and saw two men in the premises. When they saw the owner they ran away. The owner saw that the premises had been ransacked. He discovered that a pair of jeans was missing and that various old articles of clothing had been left behind. He made a report to the police.

4. Later in the evening police officers on patrol duty nearby saw two men answering descriptions which had been given to them who started to run away. The officers warned the men that if they didn't stop they would release the police dog who was with them. The men didn't stop. The dog was released and attacked one of the men who it transpired was the Applicant.

5. The dog injured the Applicant's leg and tore the jeans he was wearing. The Applicant admitted that he was an illegal immigrant but denied the burglary. He said that he had bought the jeans in question a year previously in Shenzhen.

6. The owner of the hut was able to identify his jeans to the satisfaction of the Judge. The Judge was satisfied at the appropriate level that the Applicant was guilty as charged on both counts.

7. The Applicant in his grounds of appeal does little more than simply to deny the burglary offence.

8. We can see no reason to interfere with the Judge's finding of fact which he clearly arrived at after careful consideration.

9. There is no merit in this application and it is dismissed.

Sentence

10. The Judge adopted a starting point of 2 1/2 years for the burglary offence which was generous having regard to the fact that the premises were domestic premises.

11. He adopted 15 months as the starting point for the immigration offence and ordered that 10 months of the offence should be served concurrently with the burglary offence thus reaching the 35 months earlier referred to.

12. In this connection it should be added that this was the fourth occasion when this Applicant entered Hong Kong illegally. There is absolutely no merit in this application either and it is dismissed. We further order that 3 months of the time which the Applicant has spent in custody will not count towards his sentence.