HKSAR v. TSE CHUN

1997, No.176
(Criminal)

IN THE COURT OF APPEAL OF THE HIGH COURT

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J U D G M E N T

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Leong, J. (giving the judgment of the court) :

1. The appellant was convicted in the District Court by his own plea of two charges of burglary and 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 two years imprisonment on the first charge of burglary, six months on the second charge of burglary and 15 months on the illegal immigrant offence. All sentences were consecutive making a total of three years and nine months imprisonment. He now applied for leave to appeal against sentence mainly on the ground of his family circumstances and that he was forced to commit the offences because he was in hunger at the time.

3. The fact admitted show that the domestic premises at Flat B3, 3/F, 90 Kennedy Road were broken into during the night on 20 January 1997 and a wallet, a key bag and some cash were stolen. A few days before, on 17 January 1997, a storage hut at a construction site near the Service Reservoir at Magazine Gap Road was also broken into over night and some food stuffs were stolen. The appellant was stopped on 21 January 1997 at Wanchai Gap Road by police officers on anti-illegal immigrant operation. He admitted that he was an illegal immigrant from China and had committed these burglaries.

4. The Court of Appeal in R. v. Wong Man [1993] 1 HKC 80 set down that the usual sentence for burglary offence is two to four years imprisonment and higher sentence may be imposed where the offender has committed more than one offence. The normal starting point for burglary of domestic premises is three years and non-domestic premises 2½ years. The judge, after giving allowance for the appellant's plea of guilty and taking into consideration all the circumstances of the case, imposed a sentence of two years and six months respectively on the two burglaries and this was well within the normal tariff.

5. The normal sentence for illegal immigrant offence after plea is one of 15 months imprisonment except in special circumstances. There are no special circumstances in the present case. The sentence imposed was within the accepted tariff. Since these are separate offences, the judge was entitled to order them to run consecutively. On the totality aspect, the total of 45 months for all three offences cannot be regarded as excessive. The application for leave to appeal against sentence is refused.