HKSAR v. Hau Hoi Tung
Read the full judgment text of CACC 39/2002 on BabelCite. This Court of Appeal judgment was delivered on 23 July 2002 before Stuart-Moore VP, Stock JA and Lugar-Mawson J.
Criminal law – leave to appeal – residential burglary – recent possession – credibility – immigration offence – repeated offence – loss of time – section 83W Criminal Procedure Ordinance – renewed application – single judge refusal – whether grounds justify interference with conviction – whether sentence excessive – whether loss of time should be ordered. The Applicant, aged 27, was convicted of a residential burglary in the District Court, property valued at over $17,000 having been discovered missing at about 3.15 a.m. on 24 August 2001 and the Applicant arrested about five hours later in possession of all the stolen items and remaining silent when questioned. He had earlier pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration after landing unlawfully. The trial judge described the Applicant as a 'totally dishonest and untruthful witness' whose evidence was 'full of inconsistencies, contradictions and discrepancies' and sentenced him to three years' imprisonment on the burglary charge and a consecutive term of eighteen months on the immigration charge. The single judge refused leave to appeal on 7 May 2002, and the matter came before the Court of Appeal as a renewal. Holding that the recent possession evidence was straightforward and that the trial judge's adverse credibility finding was unassailable, the court dismissed the renewed application in respect of conviction as without any substance. On sentence, the court noted that the Applicant had committed the same immigration offence twice previously and had been released from custody only five weeks before the present offences, and that eighteen months would have been justified for a second offence with a guilty plea, with twenty-one months' imprisonment being appropriate for a third such offence. The court held that eighteen months' imprisonment was, if anything, a merciful sentence, and dismissed the renewed application in respect of sentence. The court further invoked section 83W of the Criminal Procedure Ordinance (Cap 221) to order that two months of the time the Applicant had spent in custody awaiting the hearing should not be reckoned as part of his sentence, given the lack of merit in the applications.
Legal issues: Whether renewed applications for leave to appeal conviction and sentence should be granted, and loss of time under s.83W
Outcome: Both renewed applications for leave to appeal (against conviction and sentence) dismissed; two months' loss of time ordered.
Cited by 18 cases
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CACC000039/2002 CACC 39/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 39 OF 2002 (ON APPEAL FROM DCCC 879 OF 2001) ______________
______________ Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J Date of Hearing: 23 July 2002 Date of Judgment: 23 July 2002 _______________ J U D G M E N T _______________ Stuart-Moore VP (giving the judgment of the Court): Introduction 1.On 4 January 2002, the Applicant, aged 27, was convicted of a residential burglary, following a trial in the District Court before Deputy Judge Livesey. Earlier, the Applicant had pleaded guilty to a further charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The Applicant was sentenced to three years' imprisonment on the first charge and to a consecutive term of eighteen months' imprisonment on the second charge. The matter now comes before us as a renewal of the application for leave to appeal against his conviction for burglary and the sentence imposed on the immigration offence, the leave of the single judge having been refused on 7 May 2002. Conviction 2.In his written grounds of appeal, the Applicant stated that as he had not committed the burglary in question, he felt aggrieved when he found that the judge had disbelieved his evidence. 3.In court today, he has repeated the same grievance. 4.The burglary involved property valued at over $17,000 which was easily recognisable. The burglary was discovered at about 3.15 a.m. on 24 August 2001 by the occupier of a house in Lantau. About five hours later, the Applicant was arrested in possession of all the stolen items. He remained silent when questioned about them. 5.The judge was presented with 'recent possession' evidence of the most straightforward kind. Having heard the Applicant's evidence, the judge summarised her assessment of him as a "totally dishonest and untruthful witness" whose evidence was "full of inconsistencies, contradictions and discrepancies". The judge found that it was quite clear that the Applicant had been making up a story. 6.No grounds have been advanced which would justify interference with the verdict on charge 1. The application in regard to conviction is without any substance and it is dismissed. Sentence 7.In spite of the Applicant's complaint that he should have been treated more leniently on the second charge, the same assessment can equally be made of the sentence application. The judge pointed out that although fifteen months' imprisonment was an appropriate sentence for a first offender who pleaded guilty to an immigration charge such as this, in fact the Applicant had committed the same offence twice previously. She rightly commented that the Applicant had only five weeks before the present offences been released from custody after serving his sentence for an offence of the same kind. 8.A sentence of eighteen months would have been justified for a plea of guilty to a second offence of this kind and, for a third offence, there could have been no legitimate complaint to a sentence of twenty-one months' imprisonment where a plea of guilty had been entered. It follows that eighteen months was, if anything, a merciful sentence to have imposed. 9.This application is also dismissed. Loss of time 10.There has been no merit whatever in either of these applications. Indeed, the Applicant was made aware of this when he appeared before the single judge and was warned of the possible consequence, in terms of loss of time, if he renewed his applications without good reason. In any event, the Applicant would have been well aware of this from the form he signed when making his application. 11.Accordingly, adopting the provision in section 83W of the Criminal Procedure Ordinance, Cap 221, we shall order that two months of the time the Applicant has spent in custody awaiting this hearing should not be reckoned as part of his sentence.
Representation: Mr D.G. Saw, SC, DDPP and Mr Jonathan Man Tak-ho, SGC, of the Department of Justice, for the Respondent. Applicant in person. |
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