HKSAR v. Chan Man

CACC359/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 359 OF 2005

(ON APPEAL FROM DCCC 168 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP and McMahon J in Court

Date of Hearing : 6 December 2005

Date of Judgment : 6 December 2005

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.This is an application for leave to appeal against sentence out of time.

2.The applicant was convicted and sentenced on his own plea on 12 March 2004 before Judge W. Wong in the District Court for offences of Assault with Intent to Rob (being Charge 1) and Remaining in Hong Kong Without the Authority of the Director of Immigration after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 (being Charge 2).

3.In respect of the 1^st charged offence the applicant received a sentence of 40 months’ imprisonment and in respect of the 2^nd charged offence a sentence of 18 months’ imprisonment.  The sentences were ordered to be served consecutively.  That amounted to a total sentence of 4 years 10 months’ imprisonment.

4.The facts of the offences were that the applicant came to Hong Kong illegally on about 23 December 2003.  In the early hours of 25 December, he approached the victims of the 1^st charged offence, a woman and her 11-year-old son, produced a 25 cm fruit knife, grabbed the boy and demanded $400 from the mother.  The mother told the applicant that she had no money whereupon he released the boy and left.  The mother reported the matter to the police and the applicant was arrested by them shortly afterwards.  He told them he needed money for food.

5.The applicant seeks leave to appeal only the 18 months’ sentence of imprisonment imposed upon him in respect of the 2^nd charged offence.

6.His ground of appeal, as advanced by Mr Surman, is that the sentence is manifestly excessive.  He relies on the decision of this court in R. v. So Man King [1989] 1 HKLR 142 wherein Cons Acting CJ, in delivering the judgment of the court, said that for offences such as the present, i.e. of unlawfully entering and remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, a sentence after plea of 15 months’ imprisonment should be regarded as appropriate for most occasions.  He noted that level of sentence had apparently been successful in deterring illegal immigration into Hong Kong and said that it should continue to be used as the basic guideline in sentencing for such offences.

7.In sentencing in the present case, the judge had simply said :

“…. For the 2^nd charge, the proper sentence after plea would be 18 months.  So I sentence you to 18 months imprisonment. ….”

8.No reasons were given by him for the apparent enhancement of sentence above the guideline established in So Man King.

9.In our view there was no aggravating factor justifying any enhancement.  The applicant had been properly and separately sentenced in respect of the 1^st charged offence and the facts of that offence therefore could not amount to any such aggravating factor.

10.In our judgment the proper sentence after plea in respect of the applicant’s unlawfully remaining in Hong Kong should have been, as a matter of principle, 15 months’ imprisonment.  Mr Surman has given reasons for the present application being out of time.  We accept those reasons, and in the circumstances the application for leave to appeal against sentence out of time is granted.  The hearing of the application is treated as the hearing of the appeal.  The appeal is allowed to the extent that the sentence imposed in respect of the 2^nd charged offence of 18 months’ imprisonment is reduced to a sentence of 15 months’ imprisonment.  That results in a new totality of sentence of 4 years 7 months’ imprisonment.

Ms Polly Wan, SGC of the Department of Justice, for HKSAR

Mr Giles Surman, assigned by the Director of Legal Aid, for the Applicant