HKSAR v. LEE MO KANG

CACC 465/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 465 OF 2002

(ON APPEAL FROM DCCC 537 OF 2002)

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J U D G M E N T

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1. On 23 August 2002, the Applicant was convicted in the District Court of attempted burglary and remaining in Hong Kong without the authority of the Director of Immigration. He had pleaded not guilty to the offence of attempted burglary but admitted the second offence. On the same day, he was sentenced to 3 years for the attempted burglary and 15 months for remaining in Hong Kong without lawful authority, 10 months of which were to be served consecutively to the attempted burglary sentence. In total the sentence amounts to 3 years and 10 months.

2. He now seeks leave to appeal against both conviction (but only in relation to the attempted burglary charge) and sentence (in relation to both charges).

3. On the attempted burglary charge, the Applicant was convicted on the testimony of two witnesses who were domestic helpers at the house where the offence took place. He was observed trying the door handles of the front door of the house, then attempting to escape and finally, when he could not, trying to enter the premises by the kitchen via the door and windows at that part of the house. At some stage he must have done so because he took an orange from the premises. The two witnesses were believed by the judge.

4. The Applicant's version of events (essentially that he was given permission to enter the house) was rejected. H.H. Judge Poon found the Applicant evasive and a witness not worthy of belief and also said that he was making up evidence as he went along.

5. In my judgment, the learned judge was perfectly entitled to make the findings that she did.

6. In his grounds of appeal, the Applicant says that in giving evidence he forgot to mention two further points in his favour, namely (1) that such was his fervent wish to visit Hong Kong, that he could not have wanted to spoil it by committing an offence here; and (2) the learned judge failed to take into account the fact that he was immature and innocent. Even if the Applicant had mentioned these two points, I doubt very much whether it would have made any difference to the judge's verdict. It is important to be reminded that the judge found the Applicant to have been a thoroughly unsatisfactory witness. Before me this morning and at the hearing on 18 February 2003, the Applicant has protested his innocence, denied the offence of attempted burglary and has stated his love for Hong Kong and other matters, some of which were raised before the trial judge. These aspects do not advance the matter much further at all.

7. I therefore dismiss the application for leave to appeal against conviction.

8. As to sentence, the learned judge adopted a starting point of 3 years for the attempted burglary. She did this by reference to the fact that domestic premises were involved though the relevant charge was one of attempted burglary. I see no grounds to impugn the judge's approach. The sentence cannot be said to have been manifestly excessive in the present case. On the facts, there is not much distinction between the attempt to burgle and the completed offence. Indeed, the Applicant could well have been charged with the completed offence.

9. As to the second charge, the sentence of 15 months accords with previous sentences passed by the courts even on a guilty plea. Again, the learned judge has not erred as a matter of principle.

10. The learned judge has imposed an overall sentence of 3 years and 10 months. Ten of the 15 month sentence for the second charge were ordered to run consecutively to the sentence for the first charge. The judge did this taking into account the fact that there was no loss or damage to the property and no injury to any person. She also took into account the totality principle. This was not wrong in principle.

11. When the learned judge sentenced the Applicant, she noted that he was then aged 22. At the 18 February 2003 hearing, he informed the court that in fact he was only 16 years old. While this did not affect the appeal against conviction, if it were true, it might have had some bearing on the sentence passed by the learned judge. At that hearing, I was informed by the Applicant that for various reasons which I found implausible, he had not hitherto informed anyone of this. Nevertheless I adjourned the hearing to allow the Applicant to produce evidence in support of this new allegation, such as his birth certificate, school records or any other official document which would indicate his true age. He has been unable to produce any such document to support the assertion that he is only 16 years old. This morning he has been unable to produce any document verifying his age other than some letters from his younger brother referring to the fact that they were teenagers, from his mother saying he is young and from his former schoolmate. These letters do not prove his age at all, certainly not that he is only 16 years old. I find nothing in this new assertion.

12. Accordingly, I refuse leave to appeal against both conviction and sentence.