HKSAR v. Chan Siu Wa

CACC000046/1999

CACC 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 1999

(ON APPEAL FROM DCCC 1340/1998)

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Coram: Hon. Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 29 April 1999

Date of delivery of judgment: 29 April 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to five counts of burglary and one count of being in Hong Kong without the permission of the Director of Immigration. He was sentenced to a total of 5 years and 9 months imprisonment and now seeks leave to appeal against the sentences imposed.

2. The applicant and his co-defendant in the court below were here as illegal immigrants. They went on a burglary rampage at Hong Lok Yuen in the New Territories on 27th and 28th October last. There were five premises in question all of which were domestic premises. The amount of property stolen varied but in no case was the amount of very great value.

3. The sentencing Judge H.H. Judge Muttrie had this to say when passing sentence:

"Here there were five burglaries committed in the same area in the short course of a short period. The degree of criminality in all of them was about the same. I propose to assess an overall starting point for sentence.

It would not be right and would offend against the totality principle simply to add up the guideline sentences for each offence and produce a total of 15 years. In any event this would produce a result, even allowing for the usual discount, which would be beyond the limits of my sentencing jurisdiction. Equally, it would not be right simply to say that all the offences were part of a series so that they should be treated as one offence and dealt with by way of concurrent sentences of 3 years.

Five families have been put to varying degrees of distress and discomfort by having their houses burgled. Even if not much was taken and not much damage done, it is no small thing to find that somebody has been inside and ransacked one's dwelling.

I think a proper overall starting point here is 7 1/2 years for the burglaries. To this I will apply the usual one-third discount for the pleas of guilty.

There are no other mitigating factors so far as I can see. The defendants are not particularly young, and although they may have been tempted by their own poverty to come to Hong Kong illegally, this is no mitigation. If they came here looking for work they did not have to burgle. It is all very well to say that they were hungry, but they should not have been here at all; and one would have thought that if they were coming here looking for work, simple prudence would dictate bringing some provisions with them to keep them fed until they could find some paid work.

The sentence for the immigration offence should normally be 15 months, but one has to look at the totality where other sentences have been committed. This may require a lighter sentence although I do not see that a concurrent sentence can be appropriate."

4. He went on to pass concurrent sentences of 5 years on each of the burglary counts and 9 months consecutive on the immigration count.

5. In his application for leave the applicant makes reference to the fact that no violence was resorted to and that not much property had been stolen. He thought that the sentences imposed were excessive.

6. Before us, he repeated that no one had been harmed. He realized that he had done wrong and that was why he had pleaded guilty. He also referred to his difficult family circumstances. That being said the sentences which were imposed were entirely appropriate.

7. The total sentence was in no way wrong in principle or manifestly excessive. The application is dismissed. As it is devoid of merit we order that 3 months of the time that he has spent in custody will not count towards the sentences which were imposed.

Representation:

Ms Catherine Fung, S.G.C. (D.P.P.) for Respondent

Chan Siu-wa, Applicant in person