HKSAR v. Fong Chun Wai

CACC000335/2002

CACC 335/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 335 OF 2002

(ON APPEAL FROM DCCC NO. 461 OF 2002)

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Coram: Hon Stock, Yeung & Ma JJA in Court

Date of Hearing: 28 January, 2003

Date of Judgment: 28 January, 2003

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.The applicant, Fong Chun-wai appeared before Deputy Judge Jenkins in the District Court on the 1st charge of "Burglary" and the 2nd charge of "Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong".

2.The applicant pleaded guilty to both charges and was sentenced to the respective terms of 2 years and 15 months with 9 of the 15 months to be served consecutively. The total sentence is 2 years and 9 months.

3.The applicant applied for leave to appeal against sentence and surprisingly against conviction as well.

4.His application initially went before Stuart Moore VP on 29 October 2002 and was dismissed.

5.The applicant now renews his application before us.

The Facts

6.The applicant is a 19 year old illegal immigrant from the Mainland. In or about mid March 2002, he hid under a cross-border container truck and sneaked into Hong Kong.

7.On 8 April 2002, the applicant prized open the ventilation window of the victim's home at No.1 San Tsuen, Sha Tau Kok, New Territories and stole therein an under vest and a telephone book with an invoice in the name of the victim.

8.The applicant left his fingerprints and palm impression at different places inside the burgled premises.

9.The applicant was arrested on the same day in the vicinity of the burgled premises. He was wearing the under vest belonging to the victim and was carrying his telephone book with the invoice.

10.Under caution, the applicant admitted to have stretched his hand into the burgled premises and stole the under vest and the telephone book. He also admitted to have entered Hong Kong illegally.

Grounds of Appeal

11.In his written application, the applicant did not specify the grounds of his application.

12.The applicant however suggests orally to us that he was in fact innocent; that he had been wronged and framed by the police. He also claims to have been deceived into admitting the offences by his lawyer.

13.He says he bought the under vest and picked up the telephone book and the invoice from the roadside.

14.In the light of the admitted facts and the presence of his fingerprints in the burgled premises, we find it not possible to accept the applicant's suggestion.

15.The applicant had pleaded guilty to the charges and had admitted the facts pertaining to those charges. The admitted facts clearly support the charges.

16.The plea was an unequivocal guilty plea and there is no valid basis for us to entertain the application for leave to appeal against conviction.

Sentence

17.Burglary of domestic premises attracts a sentence of 3 years imprisonment on conviction after trial. {See R v Li Ming Cr App No. 480 of 1985 (unreported), R v Chan Yui-man Cr App No. 36 of 1988 (unreported)}

18.The aforesaid starting point is meant for first offender of full age. The judge had correctly identified the starting point and had also reduced the sentence by one-third on account of the guilty plea. The 15 months imprisonment also accords with the tariff of sentence for the offence of "Remaining in Hong Kong illegally".

19.The judge had already taken the lenient approach of only ordering 9 of the 15 months to be served consecutively when he could have ordered the entire term to be served consecutively.

Conclusion

20.We see no reason to interfere with the conviction or sentence.

21.The application is therefore dismissed.

Representation:

Mr Bernard Ryan, SADPP of Department of Justice, for the Respondent.

Applicant: Fong Chun Wai, In person, present.