HKSAR v. Huang Biao

CACC 21/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 21 OF 2007

(ON APPEAL FROM DCCC NO. 1032 of 2006)

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BETWEEN

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Before : Hon Stuart-Moore VP and Beeson J

Date of Hearing : 29 November 2007

Date of Judgment : 29 November 2007

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.The appellant was charged in the District Court with offences of handling stolen goods, burglary and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (charges 1, 2 and 7 respectively).  The appellant pleaded guilty to the 7^th charge on 8 January 2007.  On 11 January 2007 the appellant was convicted on the other charges following a trial before Deputy Judge Mierczak.  A sentence totalling 4 years and 9 months’ imprisonment was imposed.

2.On 23 August 2007, I granted leave to appeal against the sentence of 2 years’ imprisonment imposed on the 1^st charge which related to the appellant’s dishonest receipt of an Octopus card which had been stolen in the course of a burglary.  Plainly, this was a sentence far in excess of an appropriate level of sentence for such an offence and the respondent has responsibly not sought to support it.  We consider that a sentence of 6 months’ imprisonment was appropriate on this charge in the particular circumstances of the case.

3.This will not, however, bring any comfort to the appellant who, on the 2^nd charge was sentenced to 3 years’ imprisonment for the nightime burglary of residential premises.  Whilst the judge made an order that 12 months of sentence on the 1^st charge should run consecutively to the burglary sentence (making 4 years’ imprisonment), we propose to order that the sentence for burglary should run consecutively to the reduced sentence for handling stolen goods, making 3½ years’ imprisonment in all on these two charges.  The final charge with which we are concerned is one on which this court has consistently encouraged the imposition of a consecutive sentence of 15 months’ imprisonment after a plea of guilty.  We shall, therefore, again interfere with the judge’s order, which was to make only 9 months of this sentence consecutive to the other sentence, by making the sentence on the 7^th charge wholly consecutive to the other sentences.

4.In the result, the appellant’s sentence will remain, in totality, the same.

5.In coming to our conclusion, we have, of course, considered the appellant’s homemade grounds of appeal which provided no assistance whatever and certainly no basis for making any reduction in the overall sentence he is serving.  His complaints against trial counsel were unfounded and the suggestion that he has “all along been remorseful” is utter nonsense.  If he had admitted the two offences of dishonesty, his sentence would have been considerably less.

6.Accordingly, the appeal against sentence is allowed on the 1^st charge and we shall reduce the 2-year sentence to 6 months’ imprisonment.  However, the total sentence of 4 years and 9 months’ imprisonment will remain, in the way we have indicated, by maintaining the 3-year sentence on the 2^nd charge and the sentence of 15 months’ imprisonment on the 7^th charge but we shall order that these sentences should be served consecutively to each other and also to the sentence of 6 months’ imprisonment on the 1^st charge.

Mr Tam Sze-lok, SGC, of the Department of Justice, for the Respondent.

The Appellant, in person.