HKSAR v. Cheung Kam Fuk

CACC000373/1999

CACC 373/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 1999

(ON APPEAL FROM DCCC NO. 456 OF 1999)

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Coram: Hon Stuart-Moore, V-P, Wong, JA & Pang, J in Court

Date of Hearing: 8 October 1999

Date of Judgment: 8 October 1999

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J U D G M E N T

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Wong, J.A.:

1. The applicant pleaded guilty before Judge Davies in the District Court to one charge of burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to 20 months imprisonment on the first charge and 15 months on the second charge. The sentences were ordered to be served consecutively making a total sentence of 2 years and 11 months. He now seeks leave to appeal against the sentence.

2. The prosecution case which was admitted by the applicant before the judge was this: sometime between 9 a.m. on 16 April and 11:30 a.m. on 19 April 1999, a house in Ma Wo Village, Tai Po was broken into. The house was unoccupied during this period because the occupant was away from Hong Kong. One camera, one camera case, one waist bag, 15,000 Korean Won, 400 Indian Rupees and HK$400 were stolen.

3. The applicant was intercepted by the police at 5:40 a.m. on 18 April. He was asked to produce his proof of identity but was unable to do so. Foreign currencies of the same countries as those stolen during the burglary were found on him together with foreign currencies of other countries. He admitted being an illegal immigrant but denied having committed the burglary. However, when he appeared before the District Court, he also admitted the latter offence. The applicant was brought to the court below in a wheelchair as a result of having suffered a stroke since his arrest. This was an important factor that the judge took into account in sentencing the applicant.

4. We see this morning that he no longer sits on a wheelchair and is able to stand up and walk without help. The judge also took into consideration his family and personal background.

5. The judge took a starting point of 3 years for the burglary, which is the proper starting point for simple burglary committed in domestic premises, and reduced the sentence to 20 months which is more than the usual one-third discount allowed for a plea of guilty. In so doing, the judge probably had some sympathy for his medical condition at the time. The judge also imposed a sentence of 15 months in respect of the immigration offence which again is a proper and correct sentence. The two sentences were ordered to be served consecutively.

6. In a letter he wrote to the Court recently, he said that he came from Xinjiang of the Mainland. His wife died of illness, leaving behind a 6-year old child who is now living with his mother. Recently he has been in financial difficulty since he lost his job in March this year. He went to Shenzhen intending to go to Taiwan to look for his paternal uncle. He came to Hong Kong through Man Kam To by hiding himself in a goods vehicle. He alighted at 4 a.m. and found himself in a carpark. And then later, he went to a garden and while he was sitting on a bench, he found a carrier bag containing a camera, a black waist-bag, three packets of instant noodles and a number of foreign coins. He picked them up and about an hour later, the police came and arrested him. He alleged that he was beaten up by the police while in police custody. He also alleged that he was induced into pleading guilty by his lawyer. He insisted that he had been wronged and as he and members of his family are Catholics for generations, he could not have committed the offence.

7. Before us this morning, he repeats that he did not commit the burglary and he also complains the sentence on the second charge is too severe. He only arrived in Hong Kong on the 18th and was arrested on the same day. He said that he was assaulted by the police. These are allegations inconsistent with the facts which he admitted before the judge. As regards his personal background and circumstances, he told the judge more or less the same thing which the judge fully took into account.

8. The starting point for a simple burglary in domestic premises is 3 years imprisonment. A plea of guilty would normally attract a one-third discount. The judge had given him more than one-third discount for this offence. There is no ground for us to interfere with the sentence.

9. The application is refused.

Representation:

Mr. Derek Pang (SADPP) for Director of Public Prosecution

Applicant: Cheung Kam Fuk, in person