HKSAR v. CHAN PAK MAN

CACC 292/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 1999

(ON APPEAL FROM DCCC 1351 OF 1998)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Chin Pak-man, pleaded guilty before Deputy Judge Li in the District Court on 3 February 1999 to two charges. The first was of burglary, and the second charge that of being in Hong Kong without the authority of the Director of Immigration having landed unlawfully. He was convicted and sentenced to 2 years on the first charge, and to 15 months on the second charge, 10 months of which was to run consecutively to the sentence on the first charge, making a total of 2 years and 10 months.

2. The applicant now applies for leave out of time to appeal against sentence.

3. In his written notice of appeal for leave to appeal, he simply says this:

"Since I do not understand the laws of Hong Kong, I missed the time limit for appeal application. I now apply to the Court for appeal out of time. I hope the Court would grant me the application."

4. Before us today, he has produced a document dated 15 August 1999, i.e. two days ago, which he has had read out. This sets out his grounds of application and appeal. First of all, that the sentence is too severe. Secondly, that his background was not conveyed to the judge. Third, a repetition of why his application was late. The fourth outlines his family background. He comes from a family of farmers. He is the eldest. His younger brother and his mother are very weak. The family is very poor. They have no money for a doctor. He is the sole bread winner. They have little land and despite his very hard work, it does not produce enough food for them. He has not been able to marry. They have suffered from a flood. So he decided to travel to Shen Zhen to earn money. He found things very quiet there. He could not get a job. He heard a rumour that it was easy to get jobs in Hong Kong. In his desperation, he decided to come here. He found he could not converse in the dialect here. He was struggling from death and got the idea to steal food, or a little money for food. He asks this Court to take into consideration also that his family has now suffered another flood.

5. The facts are that in North Point where the first offence was committed on the night of 31 October 1998, shortly before 4 am, the occupant of one of the flats adjoining the flat that was burgled noticed someone, who turned out subsequently to be the applicant, climbing up the building and entering the flat that was burgled. He made a report to the police. A little later, the occupants of the flat were awoken by the police who searched the flat. The residents noticed that some of their things had been disturbed. A purse was on the floor with the contents of a handbag scattered around the floor. The police made a further search of the flat and found the applicant. They subdued him after a short struggle and arrested him.

6. In sentencing him after he had pleaded guilty, the judge said this:

"You sneaked into Hong Kong by hiding in a train on 30 October 1998. You immediately committed the offence of burglary on the same night. Your fingerprints were found at the window of the burgled premises. You were caught red handed.

I have taken into consideration your personal background and the fact that you are only 25. You have a clear record. There are no humanitarian grounds or any other reasons that warrant a departure from the tariff. However, I will give a one-third discount for the plea in relation to the burglary charge.

For the 1st charge of burglary I take a starting point of 3 years' imprisonment. One-third discount, I order 2 years' imprisonment. For the 2nd charge, I order 15 months' imprisonment.

Bearing in mind the totality principle I now order 10 months of the 2nd charge to be consecutive to the 1st charge, the remainder being concurrent."

It is plain that the judge was entirely correct in taking the starting point of three years on the burglary charge. That is the precise tariff for burglary in respect of domestic premises. He was also right in granting a one-third discount. However, he was rather generous in ordering 10 months of the 15-month sentence to be consecutive. The usual rule is for the entire 15 months to be served consecutively. Notwithstanding all that, he has applied for leave to appeal. None of his grounds are meritorious. His hardship is no excuse for breaking the law. It is clear that having arrived he immediately committed the crime of burglary. As we have said, there is no merit in any of his grounds and we dismiss his application for leave to appeal against sentence out of time.

7. Having regard to the total absence of any merit, we order that three months of the period he spent in custody will be disallowed from being reckoned as part of his sentence.

8. The result is that he will serve a sentence that will be longer to that extent.