R v. LI FEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 776 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty on 4th June 1996 before a magistrate to two offences. The first was an offence of burglary committed on 11th May 1996. For that, he was sentenced to 12 months' imprisonment. The second was an offence of remaining in Hong Kong without authority. For that, the magistrate sentenced him to 15 months' imprisonment. She ordered the sentences to run consecutively, making a total of 27 months.

2. The appellant and another had come into Hong Kong unlawfully within days prior to the arrest. On the night of 11th May, they entered a stone hut in Sha Tau Kok, and entered the bedroom where an old lady aged 76 was in bed. She became aware of their presence, but pretended to be asleep. The two then stole money, about $800, and left. Once they left, she shouted for help and the two fled. They were, however, caught that night.

3. On the charge sheet, the appellant was described as someone aged 16 years. It was, however, represented to the magistrate that he was in fact 27 years and that, no doubt, was the footing upon which the magistrate proceeded. The magistrate took a starting point of 2 years for the burglary and reduced it to 12 because of his plea of guilty, but also, it seems, to give effect to what she considered to be the appropriate total sentence.

4. This is the third case this week in which I have been obliged to point out that this is not the proper way to give effect to the totality principle. The magistrate should have imposed what she considered to be the appropriate sentence for the offence, and then given effect to the totality principle by making use of her power to order sentences to run concurrently, consecutively, or partly both.

5. Subject only to the question of the appellant's age, I see nothing wrong in the event with a term of 12 months' imprisonment on the first charge, that is, for the burglary, after plea. It is said in the written grounds of appeal that the magistrate did not take sufficient account of the fact that the offences were committed because the appellant was hungry and thirsty and needed money. This excuse or explanation for burglaries by illegal immigrants, is evidently the flavour of the season, and the sooner the message reaches them that it constitutes no mitigation whatsoever, the better (although I realise that that comment runs the risk of encouraging a fresh rash of excuses).

6. This was a burglary at night in a private dwelling of an old lady who must have been terrified by the experience. It is wholly unacceptable conduct, and the courts are bound to visit conduct of this kind with a stern approach to sentence.

7. The magistrate imposed that sentence, and in particular a sentence of 15 months in respect of the immigration offence, believing that the defendant to be aged about 26 or 27. It now transpires that that is not his true age. He was under the impression, so I am told, that by providing a more advanced stage than his true age of 16, he would be detained in Lai Chi Kok Reception Centre where he could, during incarceration, earn more money than if detained elsewhere.

8. The Crown today accepts that he is 16 or thereabouts. That being so, I must look at the matter afresh in the light of that changed fact.

9. Mr Wong has helpfully drawn to my attention two authorities which touch upon the subject of the tariff for youngsters convicted as illegal immigrants. The first is R. v. Wong Siu Chung Mag.App.No.1599 of 1989 where the Chief Justice reduced the term of 15 months' imprisonment to one of 9 months' imprisonment on a 17 year old illegal immigrant for the immigration offence. He commented that :

"... for defendants under 18 years of age, very special consideration should be given."

10. In Ng Kin Hung and Others [1991]1 HKLR 81, a number of young offenders were sentenced to 6 months' imprisonment instead of the normal 15 months. There is no indication in the judgment of the Court of Appeal, or in the headnote, about the actual ages of the appellants in that case. The Court commented at p.86 that the case of Attorney General v. Tai Man Bing and Others :

"... confirms that youth in itself is no excuse. There the offenders were 18 years of age. But extreme youth cannot be ignored."

11. Mr Wong invites me to say that 16 years constitutes extreme youth. I do not think so, but nevertheless it seems clear that for someone of 16 years, a tariff of 15 months is thought to be too high.

12. In my judgment in this case, the appropriate sentence for the immigration offence is 8 months' imprisonment. I do not intend to tamper with the sentence of 12 months' imprisonment for the burglaries simply because the appellant is young. This was, as I say, burglary of domestic premises at night and to the terror of the aged occupant, and that is conduct which must be punished and discouraged. I have taken into account the appellant's age, though I have observed him and he appears a very steady and robust person of his age, if indeed he is - as I must assume - aged 16.

13. The offences are separate offences and therefore in principle should be consecutive one to the other. However, in my judgment, a total term of 20 months' imprisonment would be too high. In my judgment, justice is served if I order 6 months of the term imposed for the burglary offence to run consecutively and 6 months to run concurrently with the term of 8 months which I impose for the immigration offence, making a total of 14 months' imprisonment. In passing the sentence which I do, I treat the appellant as a youth with no previous convictions.

14. Accordingly, the appeal is allowed to the extent I have indicated and the sentences imposed by the magistrate are substituted by the sentences which I now impose.