HKSAR v. LAU CHIU KWAN

CACC 213/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 213 OF 2001

(On Appeal from DCCC 1109 of 2000)

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J U D G M E N T

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Hon Lugar-Mawson J (giving the judgment of the Court):

1. The Applicant originally applied for an extension of time for leave to appeal against sentences imposed on him in two cases. Today, we are told that he abandons the application in respect of one case, which is CACC No. 214/2001, but prosecutes his appeal in respect of CACC No. 213 of 2001, in which he is represented by Mr Bernard Yuen of counsel. It is, however, necessary for us in this judgment to refer to the facts of the two cases that gave rise to both applications.

2. On 20 March 2000, the Applicant was convicted by HH Judge Sweeney in the District Court, on his own plea of guilty, of one charge of burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration. The judge sentenced him to serve 2 years' imprisonment on the burglary charge and 1 year's imprisonment on the unlawful remaining charge. He ordered that the sentences run consecutively, making a total of 3 years' imprisonment. It is in respect of that particular sentence the Applicant has this morning abandoned his application.

3. Nearly a year later, on 14 February 2001, the Applicant was convicted, after trial, before Deputy Judge McNair in the District Court of another burglary committed before that charged in the earlier case. For this, he was sentenced to 42 months' imprisonment, 6 months of which were ordered to run concurrently with the sentences imposed in the earlier case. This means that for all his 3 offences the Applicant is now serving a total period of imprisonment of 6 years. It is that sentence he now seeks leave to appeal against.

4. The Applicant has previous convictions for offences of theft and unlawful remaining, committed in 1994, for which he was sentenced to consecutive terms of 6 months' imprisonment for each offence. Apparently those sentences did not deter him from coming to Hong Kong again to commit offences against property.

5. The facts of the 1st burglary in time are that, the Applicant burgled a 1st floor flat in Yuen Long on 5 December 1999 between 5 a.m. and 9 a.m., when it could be expected that its occupants would be present and were in fact present. He entered the female householder's room while she was asleep and stole her property in it. About $4,000.00 in cash and a wallet were stolen. The Applicant's fingerprint impressions were later lifted from the flat's balcony.

6. The second burglary in time occurred in the early hours of 8 December 1999, which is less than three days after the Applicant had burgled the flat in Yuen Long. On this occasion, the Applicant burgled a 3-storey house in Repulse Bay, again at a time when the householder and his family members were asleep in their bedrooms. The bedrooms of the householder and his daughter were ransacked. Fingerprint and palm impressions of the Applicant were subsequently lifted from the householder's bedroom. The Applicant stole cash $12,361.00; Remninbi ￥41,642; and property valued around $421,555.00 from the premises.

7. At about 10:30 in the morning of the same day, the Applicant was seen and intercepted by police officers who were patrolling in the Shau Tau Kok area in the New Territories. His status as an illegal immigrant was revealed and various items of property, which he had stolen, were recovered from his person. The householder later identified them. The Applicant told the police that he had sneaked into Hong Kong on 6 December 1999.

8. At trial, in mitigation through counsel, he told the judge that a fierce dog had chased him into the victim's bedroom sometime after 3 o'clock on 8 December 1999. This is a strange claim for him to make, given that as the occupants of the house did not wake up, it - if it existed other than in the Applicant's imagination - must have been a totally silent fierce dog.

9. The Applicant, in his notice of application for leave to appeal out of time and through his counsel in respect of the application we are concerned with, argues that the sentence imposed on him by Deputy Judge McNair, is too severe, and that a total period of 6 years' imprisonment in respect all three offences he committed is too severe.

10. On the issue of the severity of the sentence, previous decisions of this Court, too numerous to mention, have made it clear that the starting point sentence for burglary of domestic premises is 3 years' imprisonment. The Deputy Judge in adopting a staring point in excess of 3 years did no more than acknowledge the aggravating factors in this particular case. These are factors that were recognised by Stuart Moore V-P in HKSAR v Tong Fuk Sing [1999] 3 HKC page 332, (in which the Court of Appeal increased the then applicant's sentence passed at trial from 18 months' imprisonment to 3 years' imprisonment); at page 335, line I, the learned Vice President said this:

"This burglary was aggravated by having been committed in the early hours of the morning at a time when the house was occupied and when anyone would clearly have expected it to have been occupied. The husband and wife who lived in this house woke up after the event to find part of their home had been ransacked during the night. It was therefore a bad case of its kind."

The aggravating factors in case that we are concerned with amply justified a sentence in excess of 3 years' imprisonment.

11. It is well established that the sentence for an offence of unlawful remaining will normally run consecutively to the sentence imposed for a burglary offence committed by an illegal immigrant. In Tong Fuk Sing to which we have already referred, the learned Vice President (at p.838 lines A-B) referred to the Court of Appeal's observations in HKSAR v Wong Ting Wa CACC 153 of 1997 (unreported); in which the Court said this:

"This Court has repeatedly said that it is proper that such sentences be made consecutive. We have observed on a number of occasions in the past that householders, particularly those who reside in the New Territories, are entitled to retire in the evening with a feeling that their house and their property therein is safe from the sort of depredation that persons such as the Applicant are committing. It would be wrong for the courts to exercise leniency in relation to offences of this type. It would be failure to give what protection the courts can give to the residents of Hong Kong. The sentences, in our view, were not too severe."

12. On the issue of totality, Attorney General v Lo Ching Fai [1996] 1 HKC 747 gives no support for the proposition that the staring point for two charges of domestic burglary cannot exceed a certain number of years of imprisonment. Much depends on the facts of each individual case. For example, in HKSAR v Lau Hang Sang CACC 397 of 2000 (unreported), the Applicant pleaded guilty to two charges of two separate burglaries of residential premises committed at night while their occupants were asleep. The burglaries were 4 days apart. The trial judge sentenced the Applicant to a total of 4 years' imprisonment, after taking a staring point of 3 years for each of the burglaries. The Court of Appeal was not persuaded that the Applicant's grounds of appeal had any merit, save in one respect, which is irrelevant for the purposes of the present application. In HKSAR v Kenny Yip CACC 324 of 2000 (unreported), the applicant pleaded guilty to one charge of burglary and one of attempted burglary, both in respect of domestic premises, the trial judge adopted a global starting point of 5 years' imprisonment. In dismissing the application for leave to appeal against the sentences, the Court of Appeal said that there was no material before the Court to justify interfering with them.

13. We are of the view that the individual sentences for the burglaries in both trials were correct. The totality of 51/2 years' imprisonment for the two burglaries, would in itself have been too high. What, however, has to be remembered is that this applicant was an unlawful immigrant and his sentence for that offence, in our view, ought to be wholly consecutive.

14. Given the particular facts of the two case and the applicant's particular circumstances, including his criminal record, overall sentences amounting to 6 years in total - whilst we acknowledge that they are at the high end of the scale - can not be said to be manifestly excessive.

15. The reasons in support of this application for leave to appeal out of time were wholly inadequate. Had the application been brought in time, it would have been an appeal without merit. The Applicant's application for leave to appeal out of time is refused.