HKSAR v. Yu Chak Lam

CACC 37/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 37 OF 2006

(On Appeal From District Court Criminal Case 1223 of 2005)

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BETWEEN

Before : Hon Cheung JA, Yuen JA and McMahon J in Court

Date of Hearing : 10 May 2007

Date of Judgment : 10 May 2007

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

The offences

1.The applicant pleaded guilty before Deputy District Judge Chainrai to four charges, namely,

1)      two charges of burglary,

2)      one charge of attempted burglary; and

3)      one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

The sentence

2.The judge used three years and six months’ imprisonment as the starting point for the charges of burglary and attempted burglary.  She then gave the applicant a discount of one third because of his guilty plea and imposed a sentence of 28 months’ imprisonment on each of these three charges.

3.In respect of the charge of illegally remaining in Hong Kong the judge adopted a sentence of 18 months’ imprisonment.   

4.In total, the judge imposed a sentence of 60 months’ imprisonment.  The first two sentences for burglary of 28 months were to be served concurrently while in respect of the third charge of attempted burglary 14 of the 28 months was to be concurrent and the remaining 14 months consecutive.  The 18 months’ imprisonment under the fourth charge was to be served consecutive to all the other charges. 

Application to treat notice of abandonment as a nullity

5.The sentence was imposed on 12 January 2006.  On 1 February 2006 the applicant applied for leave to appeal against sentence.  He then abandoned his application on 17 February 2006.  On 3 January 2007 the applicant filed an affirmation asking for leave to appeal against sentence out of time.  As the applicant had already abandoned his application for leave to appeal against sentence in February 2006, his present application is treated as an application to treat the notice of abandonment as a nullity. 

Explanation

6.The applicant’s explanation for abandoning the earlier application is that he was not granted legal aid and as he was not familiar with the law of Hong Kong and not being assisted by friends he therefore abandoned the application.  However, during the time when he was serving the present sentence he was also sentenced for another offence and there he learnt for the first time that a defendant who pleaded guilty should be given a one third discount on sentence.  He claimed that he was given less than one third discount in the present case and therefore he sought leave to appeal out of time. 

Our view on the application

7.The Court regards the notice of abandonment of an appeal to be a solemn act and will only treat it as a nullity when there is something which makes the giving of a notice of abandonment not the applicant’s true act or where there has been a fundamental mistake on his part.  An example is when an applicant issued a notice of abandonment of appeal he thought he was submitting something else to the Court and had no intention to abandon the appeal. 

8.In this case the applicant abandoned the appeal application because legal aid was not granted to him. In all likelihood he had considered that since he did not have legal representation he might not have a good prospect of success at the appeal and therefore abandoned the appeal.  The applicant obviously knew what he was doing and he was not making a mistake as to his act. 

9.We are, therefore, not prepared to accede to his request to treat his notice of abandonment as a nullity. 

Sentence appropriate

10.In any event we do not regard the overall sentence of five years’ imprisonment imposed by the judge to be manifestly excessive. 

Facts

11.The facts revealed that in the early morning on 22 September 2005 the applicant was found lying unconscious on the ground in a residential complex having apparently fallen from height.  A quantity of valuables were found in his possession and nearby on the ground.  Enquiries showed that two flats in that complex had been broken into through a window and the flats had been ransacked and the properties inside were stolen.  The missing properties matched those found in the applicant’s possession or near him.  These related to the first two charges of burglary.  The window lattice of another flat was found to be prised open and had fallen off the hinge.  An attempt had been made to enter into this flat.  This is the third charge of attempted burglary. 

12.The applicant admitted under caution that he was an illegal immigrant and had sneaked into Hong Kong in August 2004. 

13.The applicant was unconscious when he was admitted to hospital and he had head injuries and a fractured pelvis.  He had since recovered from the injuries.

The range of sentence

14.The starting point for burglary of a domestic premises is three years’ imprisonment but this only applies to a defendant who is a first offender.  The applicant was not a first offender when he pleaded guilty before the judge.  He had a previous conviction of burglary in 1996.  The fact that two flats were broken into and the third one was in the process of being broken into in the early morning was also an aggravating factor.  The judge was correct to adopt the higher starting point of three and a half years for the burglary offences. 

15.The starting point for the sentence of illegally remaining in Hong Kong is 15 months’ imprisonment but where the defendant had repeatedly committed this offence the Court is well justified to enhance it to 18 months, see : R v. So Man King and others [1989] 1 HKLR 142.  In this case this was the sixth offence of illegally remaining in Hong Kong for the applicant.

16.It is recognized that there is a lack of consistency in the consecutive sentence.  The judge adopted a concurrent sentence for the two burglary offences but imposed a partly consecutive sentence for the attempted burglary.  Since all these three offences occurred in three separate premises each of these sentences should be consecutive.

17.A better approach we would suggest is eight months of the second burglary charge and six months of the attempted burglary charge should be consecutive. 

18.While the approach adopted by the judge on the consecutive sentence may be slightly wrong in principle, we have to take into account the question of totality.  On this issue we do not regard a five-year sentence to be manifestly excessive in the circumstances of this case. 

Conclusion

19.Accordingly we dismiss the application.

Mr. Paul Ho, SGC of Department of Justice, for the Respondent

Applicant, in person, present