HKSAR v. CHI CHUNG KUK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.799
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter originally faced a charge of burglary and a charge of remaining in Hong Kong without authority. He pleaded guilty to the remaining charge but not guilty to the burglary charge. He was tried before Judge H.C. Wong in the District Court and found guilty after trial of theft.

2. It was the prosecution case that at about 6 a.m. on Monday 15th September 1997, three police officers found the applicant and another man hiding near the Mai Po Nature Trail. An Ericsson mobile was found from the right hand trouser pocket of the applicant. $5,200 cash and a Feuille D'Or wristwatch was found on the person of the other man. The money, watch and telephone had been stolen earlier on that night from the home of a Mr. Kwok at Lok Ma Chau. Entry had been gained to his premises through an unsecured window. The applicant admitted that he sneaked into Hong Kong earlier on 15th September. He alleged the other man entered the premises but conceded that he was present at that time and said that the other man when he came back out of the premises had given him the telephone which intended to sell in Shenzhen.

3. The judge was satisfied that the applicant was not guilty of burglary but in place thereof, convicted of theft. She said:

"Your conviction after trial was of theft, not burglary. After considering the circumstances, you are sentenced on the theft charge to 2 years' imprisonment and the two terms of sentence are to be served consecutively making a total of 39 months, 3 years and 3 months' imprisonment."

4. The applicant today suggests that that sentence was too severe and particularly urges that he has in China a wife and a father both of whom are hospitalized. He sought in the course of addressing this court to suggest that he was not guilty of any offence at all but we refused to hear him in that regard as this application is against sentence only.

5. All too often this court deals with offences of theft and burglary committed by illegal entrants in areas such as Shenzhen. All too often we hear from applicants who state that they have relatives in China who are ill and ask for sympathy and a reduced sentence because of that. It is the duty of this court to pass sentences that will not only punish individual offenders but which will also have a deterrent effect thus protecting the citizens of Hong Kong from such offences.

6. There was no merit of any sort in this appeal. The application is dismissed and we order that there be three months' loss of time, that will mean that three months of the time between the Notice of Appeal and today will not count towards the eventual sentence.