HKSAR v. LI SIU KEUNG @ MAI SIU KEUNG

IN THE COURT OF APPEAL

1997, No. 165

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant pleaded guilty to burglary and remaining in Hong Kong without the permission of the Director of Immigration. He was sentenced to two years' imprisonment on the burglary count and 15 months' imprisonment on the immigration count which HH Judge Hawkes, the sentencing judge ordered should be served concurrently. He now seeks leave to appeal against these sentences.

2. At the time of the offences the applicant and three other men who were with him had just arrived from China. It was apparently their intention to obtain employment on the Chek Lap Kok airport construction site.

3. The men noticed that there were no lights on at the subject premises which is at Lok Ma Chau. The men broke into the premises and stole the article referred to in the charge. The premises in question are a holiday home and a security system was in operation.

4. This was activated and police officers attended at the scene and arrested all four men at the house.

5. Judge Hawkes adopted three years as his starting point on the burglary and he gave the applicant the usual 1/3 discount for his plea. He also rather unusually ordered that the whole of the sentence of 15 months' imprisonment on the immigration count should be served concurrently.

6. The only ground of appeal advanced by the applicant was that the judge did not weigh sufficiently his personal circumstances when passing sentence.

7. We do not think that this is correct. It would appear that it was out of sympathy for the personal circumstances of the defendants that the judge ordered that the immigration sentence should be served concurrently.

8. This application is without merit and is dismissed. We order that two months of the sentence already served should not be counted as part of the sentence to be served.