HKSAR v. CHEUNG WING CHING

CACC545/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 545 OF 2002

(ON APPEAL FROM DCCC NO. 809 OF 2002)

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J U D G M E N T

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1. The applicant was convicted after trial of one charge of burglary and on his own plea of one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. He was sentenced to 18 months imprisonment on the burglary charge and 15 months on the immigration charge consecutive, making a total of 33 months imprisonment.

3. He now applies for leave to appeal against conviction on the burglary charge and against the sentences on both charges. His grounds of appeal are firstly he had no intent to steal and the judge did not fully consider the facts of the case and secondly, the total sentence of 33 months is too severe.

4. The evidence of the prosecution is as follows. The applicant was an illegal immigrant. On the morning of 5.7.2002, the applicant was seen entering into a wooden hut by a neighbour. The hut was previously locked and the applicant was a stranger in the area. The neighbour later called the police. When the police arrived the applicant was in bed in the bedroom of the hut. The hut was found to have been ransacked, all the drawers and cupboards were opened. The owner of the hut who did not live there gave evidence that the hut was not in such a state when she last visited it.

5. The applicant told the court that he entered the hut to sleep with no intention to steal.

6. The question before the court was whether the applicant had intention to steal. The Deputy Judge found that the applicant had an intent to steal when he entered the premises. She said in her judgment:

"...I find that when he entered the premises, he did open and look and ransack through the drawers. I am sure if anything was found of value, it would have been taken. A person as desperate as an illegal immigrant does not go through drawers if one does not have the intent to steal. There can be no other inference to be drawn but one of an intention to steal if he had found something worth stealing."

7. In my view, on the evidence before her, the Deputy Judge was justified to draw the inference that the applicant had entered the premises with intent to steal. The Deputy Judge had considered all the evidence before her. There can be no arguable point on the appeal against conviction on the charge of burglary.

8. As to the sentences, the Deputy Judge considered that since the owner of the hut did not use it to sleep, she could depart from the normal 3 years starting point for a domestic burglary. She adopted a starting point of 18 months. As the normal sentence after plea for a similar immigration offence is 15 months, the Deputy Judge imposed a sentence of 15 months on the second charge.

9. I see no arguable ground in the appeal against sentence. The sentences imposed were well within the guidelines and the total sentence is in no way manifestly excessive.

10. Both the application for leave to appeal against conviction and against sentence is dismissed.