HKSAR v. Chiu Po Yuk

CACC000171/1997

IN THE COURT OF APPEAL

1997, No.171
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. and Sears, J.

Date of hearing: 6 August 1997

Date of judgment: 6 August 1997

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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. In this matter the applicant faced two charges. The first charge was one of burglary which was particularized that he, on 3^rd January 1997 at Shatin, having entered Block G, Le Parc Villa, To Fung Shan Road, as a trespasser, stole four gold ornaments, a pair of shoes, a ladies wristwatch and $35 in cash. The second charge was remaining in Hong Kong without the authority of the Director of Immigration. Put shortly the applicant arrived as an illegal immigrant and very shortly after his arrival committed the burglary offence. He was sentenced to two years' imprisonment on the burglary offence and 15 months on the unlawful remaining offence and those sentences were ordered to be consecutive. He now appeals against those sentences.

2. The trial judge said when sentencing:

"The accused has pleaded guilty to charges of burglary and of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. Burglary offences committed by illegal immigrants from China are all too prevalent in Hong Kong and, accordingly, a serious view has to be taken of this matter.

The normal starting point for sentence for burglary offences involving domestic premises is 3 years' imprisonment. The usual sentence for the immigration charge is 15 months' imprisonment.

I have the benefit of the submissions made on behalf of the accused by Ms. Lai, who has given the court background information about the accused and the reason for having committed the offence. It is very much to the accused's credit that he has pleaded guilty at the earliest opportunity. Also, it does seem that he cooperated with the police after his arrest.

Taking into account the facts of the case, the plea of guilty, the accused's cooperation with the police and submissions made by Ms. Lai, the accused is convicted on both charges and sentenced to two years' imprisonment on the 1st charge and 15 months' imprisonment on the 2nd charge. In all the circumstances, I order that the sentences be served consecutively."

3. Mr. Marray, who appears for the applicant today, submits that the totality of three years and three months is excessive and that the sentence on the unlawfully remaining offence should have been made concurrent to the sentence on the burglary offence. He refers us in this regard to R. v. Yu Man-wu, Criminal Appeal No.214 of 1995, in which the court, having regard to the totality, made sentences in a robbery and unlawful remaining charge concurrent.

4. The real issue is whether the totality is too great. Each case must be looked at in the light of its own facts. We are satisfied that in the present case the totality was by no means excessive. There is nothing in our view that can be said in criticism of the judge's reasoning or of the sentences which he imposed and the application is, therefore, refused.

5. We say, as we have said before, that it has been the policy of this court where illegal immigrants come to Hong Kong and shortly thereafter commit burglary offences to uphold decisions imposing consecutive sentences.

6. The application is refused.

Representation:

Mr. Y.M. Liu, S.G.C. (D.P.P.) for the Respondent.

Mr. John Marray assigned by D.L.A. for the Applicant.