HKSAR v. CHAU FUNG

HCMA456/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.456 OF 1999

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JUDGMENT ON SENTENCE

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1. Having dismissed the appeal against conviction, I hear the Appellant's appeal against sentence. His counsel has limited instructions to represent him on sentence. It is only when the appeal against conviction for any one of the offences is allowed that counsel will represent him on sentence.

2. The Appellant himself conducts the appeal against sentence. He was found guilty by a Magistrate after trial of three offences :-

1. Possession of offensive weapon, contrary to s.17 of the Summary Offences Ordinance, Cap.228, for which a sentence of three months' imprisonment was passed;

2. Possession of offensive weapon in a public place, contrary to s.33(1) of the Public Order Ordinance, Cap.245, for which a sentence of 12 months' imprisonment was passed; and

3. Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115, for which he was sentenced to 15 months' imprisonment.

3. The Magistrate ordered the sentences in respect of the first two offences to run concurrently, and six months of the sentence for the 3rd offence to run concurrently with the sentences for the 1st and 2nd offences, resulting in the Appellant having to serve a total of 21 months' imprisonment.

4. The 1st offence involved two pairs of handcuffs and the maximum sentence under s.17 of the Summary Offences Ordinance is two years' imprisonment. I do not find anything wrong with the sentence of three months for that offence.

5. In respect of the 2nd offence, the offensive weapon was a knife which measured 33 cm with a blade of 22 cm in length. For this offence, under s.33(2)(d) of the Public Order Ordinance, the maximum sentence is imprisonment for not more than three years. This is a more serious offence than the one under s.17 of the Summary Offences Ordinance as is apparent from the difference in the sentencing maximum. The present sentence of 12 months passed by the Magistrate in respect of this offence does not seem to me to be inappropriate having considered the length of the knife possessed by the Appellant.

6. In respect of the 3rd offence which is remaining in Hong Kong after having unlawfully landed in Hong Kong, the 15 months' sentence passed by the Magistrate is in accordance with a long line of authorities in Hong Kong on the same sort of offence, the most notable one being R. v. So Man King and others [1989] 1 HKLR 142. The authorities held that even on a plea of guilty, a sentence of 15 months was appropriate. On that basis, apparently the Magistrate treated the Appellant leniently because the Appellant was found guilty after trial and his conviction did not result from a plea.

7. Before me, the Appellant mentions two reasons for reduction of his sentences, namely,

1. That he was a technician in a large-scale project on the Mainland and according to certain documents from the Central, he would have to go back soon, or otherwise he would be disqualified.

2. He has to take care of his mother and mother-in-law, both of whom are in their seventies. Moreover, he says that his daughter is studying in university at their own expenses and his wife's income is limited and cannot provide sufficiently for the family.

8. All these are not acceptable humanitarian grounds for reduction of sentence. Furthermore, the Magistrate passed concurrent sentences in such a way that the Appellant is only imprisoned for 21 months. The totality of the sentences resulting in the 21 months' imprisonment is also a lenient treatment of the Appellant.

9. I see no ground upon which this Court can interfere. In the circumstances, the appeal against sentence is also dismissed.