HKSAR v. YUEN KA HING

CACC 167/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 167 OF 2000

(ON APPEAL FROM DCCC 202 OF 2000)

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 14 April 2000, the Applicant pleaded guilty in the District Court before Judge Day to charges of burglary and remaining in Hong Kong without authority. He received a total sentence of three years three months against which he now seeks leave to appeal.

2. The judge set out the reasons for which he was imposing this sentence in the following way:

"The facts of this case show that Mr Tam, an 82-year-old gentleman, had retired early to bed on 24 December. He was woken up a couple of hours later by you and two others pushing your way into his house. You cooked yourselves food, ransacked his home for valuables and took the items in the charge sheet and left, ripping out the phone as you went.

You were apprehended three days later with some of the stolen property on you and made immediate admissions as to what you had done.

I am now told that you were hungry, were looking for food, that you wrote a note to the old man saying that you would not harm him and that you promised to repay him.

The normal sentence in Hong Kong for domestic burglaries is 3 years, but I am asked to reduce that starting point by your solicitor for those reasons. It seems to me that far from reducing the starting point, I should consider whether or not I should increase it in this situation. You say you were only looking for food. That may have been one of the reasons you were there, but then why ransack the old gentleman's house? You ransacked his living room and his bedroom and took his valuables. All the while Mr Tam was sitting on a sofa inside his living room. The old gentleman must have been scared to death.

It seems to me that there are considerable aggravating factors in this case. However, I bear in mind your early plea, which demonstrates some remorse, your young age and your co-operation and I will, for those reasons, not increase the usual starting point.

I am told that you are 22 and come from Hunan, where your brother and father are farmers. You left your home province looking for work and this is the second time you have come to Hong Kong illegally.

It seems that you had arrived in Hong Kong on the very day you committed this burglary. It is astonishing how many illegal immigrants come to Hong Kong ostensibly for work and yet, within 24 hours, are found breaking into people's homes in the New Territories. Those that do so can expect no sympathy from the court, Mr Yuen.

I shall start at 3 years and reduce that to 2 for your plea. I can see no reason to reduce that further and there will be an additional 15 months on the immigration count."

3. The judge was right to have considered making the sentence in this particular case a longer one than the guideline sentence for burglary because this was virtually a robbery and might well have been charged as such. In fact, it was a borderline case and was understandably charged as burglary, but it was a very bad case of its kind.

4. So far as the illegal entry to Hong Kong is concerned, the Applicant was remarkably lucky not to have been sentenced to eighteen months' imprisonment on that charge.

5. Nevertheless, despite these considerations, the Applicant has complained that the sentence in its totality was unfair to him. In particular, he blamed his accomplices for the ransacking of the victim's home. He has also complained that there are others he knows about who, in similar circumstances, have received concurrent or partially concurrent sentences for an offence contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115, which in the same charge as he has admitted in the present case.

6. The Applicant went on to remind us of the more important features of the mitigation which was advanced in the District Court.

7. In particular, we observe that the judge took into account that the Applicant, at the earliest opportunity, admitted his responsibility for the burglary even though he was caught some considerable time afterwards. The judge clearly had in mind all of the matters which had been raised in mitigation and we have been given no reason to interfere with the sentence that he imposed, nor do we criticise it in any shape or form.

8. The sentence imposed by the judge was entirely appropriate and the application is dismissed.