HKSAR v. TSO CHUN YAU

CACC 505/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 505 OF 2005

(ON APPEAL FROM DCCC NO. 1094 OF 2005)

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J U D G M E N T

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1. On 24 November 2005, the applicant was convicted upon his own plea before Judge Yuen in the District Court of a charge of burglary and a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  The judge passed a sentence of 16 months’ imprisonment on the first charge and 21 months’ imprisonment on the second charge.  She ordered 13 months of the sentence on the first charge to run consecutively to the sentence on the second charge, making a total of 34 months’ imprisonment. 

2. The applicant now seeks leave to appeal to appeal against sentence.

3. In his notice of application and a subsequent letter to the court, the applicant complained that the 21 months’ imprisonment for the second charge was a severe sentence and the judge did not award him one-third reduction of that sentence despite his plea.  He also complained that the lawyer representing him did not put forward what he said about the events to the judge when mitigating on his behalf. 

4. According to the summary of facts admitted by the applicant when pleading guilty, the applicant and another male Yam were found by the police walking furtively at 4.25 am on 20 August 2005 near Fuk Tak Temple, Shek Pai Street, Tsuen Wan.  After a short chase, the police stopped and subdued the applicant and Yam.  The applicant was found to be in possession of a plastic bag containing a fortuneteller’s note and two pairs of white shoes.  Both the applicant and Yam admitted that they were illegal immigrants from Mainland China.  Investigation of the temple revealed that the fortuneteller’s note and two pairs of white shoes were taken from the temple.  The fortuneteller’s note was to be given to worshippers free of charge.  Under caution, the applicant admitted that he had taken the two pairs of white shoes from the temple.

5. There was an amendment to the summary of facts by deleting the sentence “The metal gate of the office of the Temple was locked at the material time” and a handwritten replacement of the sentence stating: “The Temple was surrounded by a short fence with a gate which was locked at the material time.  The Defendant entered the Temple by jumping over the gate without breaking in.”

6. About the events of the burglary, the defendant stated in his notice of application as follows:

“The first three gates of that temple were all open.  The last one was not locked either and was only fastened with a small metal bar.  The last door was only about one metre high.  I stepped over it.  It was raining heavily.  I merely wanted to go in so that I could shelter from the rain with no intent to steal at all.  My shoes were full of rainwater then.  I thus took a pair of white cloth shoes under the canopy and changed into them and poured the rainwater out of my shoes.  The pair of white cloth shoes were thus dirtied.  I just wanted to take them away and discard them.  Finally I was thinking of returning them to the temple after cleaning them.  I had no intention of keeping them as my own.  That pair of shoes are of size 37 only and I take a size 43 (in shoes).  There were valuable items inside: electrical appliances and paraphernalia for religious rituals.  They were simply placed under the canopy outside.  Only the money box was put inside the office.  I did not touch it.  This was indeed a mistake I made inadvertently on the spur of the moment and I pleaded guilty hoping that the court would pass a lenient sentence so that I could reunite with my family soon.

There was someone else at that time.  The court released another person and prosecuted me only.

Also, the lawyer who represented me misdirected me and did not let me relate the above true course of events.  I chose to adopt the version given by the lawyer representing me.  I also did not know what to say which also adversely affected the trial of my case.

… I did want to enter Hong Kong via legal channels.  The Immigration Department at the airport refused my entry.  That’s why I entered Hong Kong again via illegal channels. ….”

7. Mr Tam, the solicitor who represented the applicant before the judge, has made an affirmation to explain what happened when taking instructions from the applicant for the purposes of addressing the court in mitigation.  He had explained the un-amended version of the summary of facts to the applicant, who disagreed that the gate of the temple was locked.  The applicant also told him that he did not take away the money in a donation box or the VCD player which were inside the temple.  However, Mr Tam noted that there was no evidence of the presence of a VCD player in the temple area that could be easily taken away by the applicant and that the witness statement of the manager of the temple said that the worship money donation box was locked inside the office of the temple.  The manager’s statement also stated that the metal gate of the office of the temple was locked. 

8. Due to the insistence of the applicant that the gate of the temple was not locked, Mr Tam wrote a letter to the Department of Justice and was eventually able to achieve the amendment to the summary of facts as mentioned above. 

9. I am not impressed with the grounds of appeal raised by the applicant. 

10. First, the ground that the judge did not give him a one-third reduction for his guilty plea is caused by a misunderstanding.  For the burglary charge, the judge adopted a starting point of two years and reduced it by one-third to reach a sentence of 16 months’ imprisonment.  It is abundantly clear that the applicant’s guilty plea had been taken into account. 

11. Regarding the second charge of illegally remaining in Hong Kong, the judge stated, correctly, that a consecutive term of 15 months for a first offender after a plea of guilty had long been accepted for the offence: see Wong Ting Wa, CACC 153/1997 and Tong Fuk Sing [1999] 3 HKC 332. 

12. However, the judge noted that the second charge was the applicant’s 8^th illegal entry into Hong Kong and commented that the usual sentence of 15 months’ imprisonment after plea had no deterrent effect on him.  Having considered the fact of re-offending and that Yam, the person accompanying the applicant had been convicted on his own plea to the offence of illegal remaining and was sentenced to term of 21 months’ imprisonment, the judge adopted the same term of 21 months’ imprisonment for the applicant.  This was well justified and is clearly established: see The Queen v Chan Wun Sang & Anor [1993] 1 HKCLR 46 and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833B-834B.

13. The applicant has cited to me, amongst others, his own previous cases regarding similar charges as examples to demonstrate that the sentence this time was too severe.  He should appreciate that the heavier sentence this time was aimed at deterring him from re-offending.

14. As can be seen from the Reasons for Sentence, the judge did mention Yam’s conviction and sentence.  The applicant’s allegation that Yam was released is therefore wrong. 

15. As to the applicant’s complaint about his lawyer not putting forward the events of the admitted burglary to the judge in mitigation, as I have said before, Mr Tam did obtain the agreement of the prosecution to amend the summary of facts to show that the applicant only jumped over the locked fence to get into the temple instead of breaking in.  As to the allegation that the applicant did not take away money or valuables from the temple, that was taken into account by the judge.  Mentioning that the applicant admitted under caution that he stole the two pairs of white shoes from the temple, the judge noted that the properties stolen were not of a substantial value and were items of necessity.  She also noted that no occupant had been alarmed by the intrusion of the applicant.  She made the point that the usual sentence for burgling in non-residential premises is a term of 2½ years’ imprisonment but she only adopted a lower starting point of 2 years.  This is in line with HKSAR v Sim Ka Wing, CACC 450/2000.

16. I consider that the grounds raised by the applicant are not arguable to demonstrate that the sentences for the two charges to which he had pleaded guilty, either separately or globally, are either wrong in principle or manifestly excessive.  His application must be dismissed. 

17. I remind the applicant that he is entitled to make a fresh application to the Court of Appeal, which must be made within 14 days of today.  I warn him that if the Court of Appeal, when dealing with the fresh application, is of the view that it has no merit, it can order a loss of time that he has spent in custody to be taken away from the counting of the service of the term of his imprisonment, and that the court can order an increase of sentence.