HKSAR v. Chu San Ming

CACC000581/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.581
(Criminal)

-------------------------------

Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 28 May 1998

Date of Judgment: 28 May 1998

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one charge of burglary which particularized that he, on 10th January 1997 at Lantau, with another person unknown, entered as a trespasser the first floor of No.30 Sun Wai Village, Pui O, with intent to steal. He pleaded not guilty to that charge but was found guilty after trial in the District Court before Judge Wilson and was sentenced to imprisonment for 21 months. That sentence was ordered to be consecutive to a sentence of 18 months, which he was then serving on charges of unlawfully remaining in Hong Kong and receiving. He now seeks leave to appeal against both conviction and sentence.

2. In his evidence, the applicant said that he came to Hong Kong for sightseeing and stayed on the first floor of a house, which he thought belonged to Lee Kwong, his "guide". The householder, an elderly gentleman who lived downstairs said that on 10th January, he went up and, to his surprise, found the door to the first floor which was usually left unlocked was locked when he opened it, he found two men in the house who immediately fled.

3. It was the applicant's evidence that these two were members of a party of four, which included himself and Lee Kwong, who had gone to the house on the evening of 8th January. He said that he and Lee Kwong had left the house before the incident with the householder.

4. The trial judge had the following finding:

"In evidence, the defendant admitted he had, in fact, arrived in Hong Kong on the night of 8 January. The prosecution suggests that the defendant's police statement contained a lie, that he had arrived in Hong Kong on 14 January, that is to say after the burglary, and that was an attempt to provide an alibi for the burglary for himself. The defendant says his mind was not directed to the burglary at the time, that he was nervous and the police told him to think of any date to put in the statement anyway. I do not attach too much significance to this point. Although there is no identification by the householder and no admission by the defendant, the undisputed evidence of the fingerprints establishes that the defendant was in the upstairs portion of the house and the defendant admits this was on the night of 8 and 9 January.

I cannot say whether it is proved beyond doubt that the defendant was one of the two intruders disturbed by the householder, or whether there were in fact two others as the defendant claims. But I reject the defendant's evidence that he thought the elusive Lee Kwong, a Taiwanese and an organiser of unorthodox immigrations to Hong Kong, owned or lawfully occupied the upper storey of a house in Hong Kong.

I am satisfied from the evidence that the wardrobe was prised, that the premises were ransacked; that the defendant and whoever he was with entered the premises with intent to steal anything of use to them and that they did, in fact, steal at least a small quantity of gas. One could hardly fail to notice that the householder and his wife were in full-time occupation downstairs, nor can I accept from the photographs of the premises upstairs which have been produced, that one could fail to notice that someone was at least in occasional occupation upstairs too.

I am satisfied the charge has been proved beyond reasonable doubt."

5. The applicant maintained in his evidence and indeed has maintained today that he thought the house belonged to Lee Kwong. The trial judge, having heard the evidence, rejected this version which, we cannot help but observe, was far from credible.

6. When this matter first came for hearing, we were disturbed by the fact that the applicant was able to produce a large number of photographs which appeared to indicate that he was on a sightseeing visit to Hong Kong. Indeed, that may well have been so but it does not go to the real issue before us which were whether he entered Hong Kong as an unlawful entrant, which is, of course, admitted, and committed the offence charged. There was no issue that he spent the two nights in the house. He admitted it and it was established by the photographs. His evidence was that he had then set out on what might be termed a spree of sightseeing. It must be noted that according to the householder nothing was actually stolen from the house. However, the trial judge, having heard the evidence, rejected his story that he had been innocently in the house. The judge was satisfied that he had, with others, entered and ransacked the house and that they had actually stolen a small quantity of gas. The applicant suggests that this last finding was incorrect but it is based upon his own admission that he used L.P. gas to cook food and it is in accordance with the evidence of the householder who stated that L.P. gas was installed in the premises.

7. The trial judge, having rejected his evidence that he was innocently in the house, was entitled, we are satisfied, to draw the inference that he did enter the house with an intention to steal anything that might be of use therein, and that he did in fact steal a small quantity of gas.

8. This application for leave to appeal against conviction has no merit and is dismissed.

9. The applicant also asks us to consider his sentence saying that it is too severe given that it was ordered to be served after the completion of the sentence of 18 months imposed on the two other offences to which we have referred. Serious as any unlawful entry is, we are satisfied this was not the worst case of its kind. We are satisfied that the overall sentence of 21 months in the present case, consecutive to the 18 months in the two earlier charges, was excessive. Plainly these three matters should have been dealt with together and the overall sentence should have been assessed, taking into account the criminality involved in all three. This would have been achieved if a sentence of 12 months had been ordered to be consecutive to the earlier sentences.

10. We are satisfied that the sentence of 21 months was manifestly excessive. We, therefore, allow the application, treat its hearing as the hearing of the appeal and vary the sentence to one of 12 months to be served consecutively to the earlier sentences.

Representation:

Miss Polly Wan (D.P.P.) for the Respondent.

Applicant in person.