HKSAR v. TAI YUK SHAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 566
(Criminal)

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The applicant pleaded guilty before His Honour Judge Longley in the District Court on 29 October 1998 to two charges. The first charge was of burglary in that he entered as a trespasser a building in Shatin in the New Territories. The second charge was remaining in Hong Kong without the authority of the Director of Immigration after landing unlawfully in Hong Kong contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115. He was sentenced to 18 months on the first charge and to 15 months on the second, to run consecutively to the first, making a total of 33 months. He now seeks leave to appeal against those sentences.

2. In sentencing him, the judge noted the following matters. It was the third occasion the applicant was before the courts as a result of entering Hong Kong unlawfully. And it was the second occasion that he was before the courts for the offence of burglary. The judge then rightly pointed out that he could not therefore claim in mitigation that he was of previous good character.

3. The facts were that a resident in the multi-storey complex concerned at about 3 o'clock in the morning saw the applicant climbing into a window on the second floor. He called the police. They detained the applicant when he emerged. The judge observed that to violate the privacy of another person's home in the middle of the night is a serious offence. That plainly is so. However, he went on to say because the applicant's intention was only to look for food, he was persuaded that a lower starting point would be appropriate. He accordingly adopted a starting point of 27 months. He then discounted that sentence to take into account the plea of guilty, giving the applicant the full usual one-third discount. On the second charge, he imposed a sentence of 15 months, making a total of 33 months imprisonment.

4. In his notice of appeal for leave, the applicant included an appeal letter which runs to some four pages of typescript. In it he begins by saying that he finds the sentence too severe and asks this Court to grant a reduction. We have to say at once that the sentence is far from severe. On the first charge, it is clearly a lenient sentence, as the judge explained when he sentenced the applicant.

5. The applicant in his letter then went on to refer to the floods in China in his home area in 1998. He points out that they caused a lot of damage to his family. They lost their property. They had to make repairs. A heavy burden was placed on him. His parents are farmers and are now aged 70. In desperation he came to Hong Kong to earn some money. He arrived by hiding under a container truck. He left the truck, he says, at 1.30 a.m. He was very hungry and intended to find a convenience store to buy something to eat. Having walked for an hour he noticed someone looking at him, and realising his clothes were very dirty from the truck, he decided to abandon his plans to go to the convenience store to buy things. He then noticed an open window on the second floor and climbed in intending to get some food. After he entered, he remembered a previous occasion when he was caught by the police when he went to take food, so he decided to give up that plan. He left the flat and, when he came down, found the police there. He surrendered to them. He then makes the point that he did not remain in Hong Kong for long, having been arrested almost immediately.

6. As to the second charge, he says, he attempted theft, but he did not in the event steal anything. He says he pleaded guilty from the beginning and asks therefore why he should be sentenced so severely.

7. Finally, he says, he did not steal any money or anything valuable. He suggests that he had learnt a lesson from the previous occasion. He asks for a chance to start anew.

8. Before us today, he has repeated those matters and has made the following points, mostly repetitious: that he did not steal, he did not cause loss, he did not harm or hurt anyone; he is remorseful; his father is ill in hospital and his is a special case. As to the last, why it is special is not clear.

9. In addition to those six points, he says his father has to undergo surgery. He did not have any weapons on him nor did he have other person's property on his person and, he adds, that the offence was not premeditated, meaning no doubt the offence of entering the second floor flat.

10. Lastly, he has produced a letter from his girl friend from which it is apparent that his father is no longer in hospital but, it is said, fees of some RMB7,000 have been incurred.

11. There is nothing in any of those grounds. What he tends to overlook is that this is the third successive unlawful entry and it is his second burglary. Having received a lenient sentence for the burglary offence and given the full one-third discount, he was clearly leniently treated.

12. As we have said, there are no grounds whatsoever to show that the sentence was severe. His reasons being so totally devoid of merit, we think the period he has been in custody pending determination of his appeal should be disallowed from being counted in his sentence. That is slightly in excess of two months. We accordingly dismiss his application for leave to appeal and order that two months be disallowed from being reckoned in his 33-month sentence.