HKSAR v. Cheung Yu

CACC000267/1997

IN THE COURT OF APPEAL OF THE HIGH COURT

1997, No.267
(Criminal)

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Coram: Hon Power, V-P, Mayo J.A. and Pang, J. in Court

Date of hearing: 18 November 1997

Date of judgment: 18 November 1997

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J U D G M E N T

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

1. The Applicant Cheung Yau pleaded guilty in the District Court to one count each of Burglary, contrary to s.11(1)(b) of the Theft Ordinance and Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance. For the burglary charge, he was sentenced to two years and four months imprisonment and for the latter offence he received a term of eight months. The sentences were ordered to run consecutively. He now appeals against the sentence in respect of the former offence only.

2. In support of his appeal, the Applicant contends that he had committed the offence under the influence of his peers and he is now remorseful. Further, there is an aged family member who needs his care and attention in mainland China.

3. The facts of the case, which the Applicant had agreed in the court below was that in the early hours of 27 January this year, he broke into a domestic premises in the Sea Crest Garden in Sham Tseng, New Territories and had stolen therefrom a lady's Rolex watch and cash of $1,300.

4. When his presence was discovered by the couple residing at the premises, a struggle ensued and the husband received some minor injuries. The Applicant managed to make good his escape but he was later arrested by the police on the same day on the roof-top of the block of flats where the victims resided. Under caution, the Applicant admitted both offences and the watch was subsequently recovered.

5. In passing sentence, the learned judge referred to the case of R. v. Luk Wai-kit Crim. App. No.99 of 1992. He considered the assault by the Applicant on the male occupant as an aggravating factor and he adopted the starting point of three years and six months imprisonment. He then gave a global discount of one third for his plea and co-operation with the police, and arrived at the present term of two years and four months.

6. We are of the view that the sentence passed is neither wrong in principle nor manifestly excessive and we see no reason to disturb it. The appeal against sentence is dismissed.

7. The Applicant has been warned in no uncertain terms by this Court of the risk of losing time on unmeritorious appeals. We find no merit in this appeal whatsoever, and we order a period of one month for loss of time.

Representation:

Mr Derek Pang, S.A.D.P.P., for D.P.P. of HKSAR

Applicant : Cheung Yau, in Person