Read the full judgment text of CACC 79/2017 on BabelCite. This Court of Appeal judgment was delivered on 21 March 2018 before Hon Yeung VP, Poon JA.
Criminal law – sentencing – burglary – aggravating factor – immigration status – mandated refugee – torture claimant – distinction – whether distinction affects uplift – totality principle – consecutive sentences – multiple dishonesty offences – appeal against sentence. The appellant, a Pakistani national who had been granted mandated refugee status by UNHCR in 2002, had prior convictions for theft, burglary, possession of dangerous drugs, robbery and attempted robbery. About one month after his release from prison, on 15 August 2016, he entered a restaurant in Central and stole a safe, a laptop, four bottles of wine and HK$4,500 cash, and was charged with burglary. He pleaded guilty on 22 March 2017 before Judge G Lam in the District Court, who adopted a 30-month starting point for non-domestic burglary, increased it by 3 months to 33 months because of his immigration status following Norena Gutierrez Cristhian Andres, Shah Syed Arif, Azad Mohammad Farhan and Zunduidavaa Zinameder, and reduced it by one-third to 22 months for the guilty plea. The judge ordered the 22 months to run consecutively to a 10-month sentence imposed on 29 December 2016 in KCCC 4501/2016 for obtaining property by deception and theft. Leave to appeal was granted by Macrae JA on 28 November 2017 on two grounds: whether the judge was wrong to treat the appellant's status as a mandated refugee (rather than a torture claimant) as an aggravating factor, and whether the judge erred in failing to consider the totality principle when ordering the sentences to run consecutively. Held, dismissing the appeal: applying Sandagdorj Altankhuyag & anor [2014] 1 HKC 206 and Norena Gutierrez Cristhian Andres, the rationale for treating immigration status as an aggravating factor is that permission to remain in and move about freely in Hong Kong pending resolution of an immigration claim is a privilege flowing from international obligations and the human rights provisions of the Basic Law, and Hong Kong and its residents are exposed to a risk of crime that would not otherwise exist. Whether the claimant is a mandated refugee or a torture claimant is immaterial to that analysis because both categories have no right to remain in Hong Kong and both await the outcome of a process beyond their control; the personal difficulties of being unable to work and the mental health problems commonly suffered are self-induced to a large extent by the offenders' own repeated offending, and cannot be treated as mitigating factors, lest it encourage exploitation of refugees and torture claimants by criminals. On totality, although the judge should have articulated his reasons and obtained the file on KCCC 4501/2016, the two cases involved entirely separate incidents of dishonesty committed a month apart and the judge was entitled to impose entirely consecutive sentences; the total of 32 months was not manifestly excessive. Sentence of 22 months' imprisonment for burglary, consecutive to 10 months in KCCC 4501/2016, upheld.
Legal issues: Whether a mandated refugee's immigration status may be treated as an aggravating factor in sentencing · Whether the totality principle required concurrent rather than consecutive sentences
Outcome: Appeal against sentence dismissed
Cited by 37 cases · Cites 4 cases