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Secretary For Justice v Tse Ki Wu

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date05 November 2001
Year2001
Judgement NumberCAAR13/2001
Subject MatterApplication for Review
CourtCourt of Appeal (Hong Kong)
CAAR000013/2001 SECRETARY FOR JUSTICE v. TSE KI WU

CAAR000013/2001

CAAR13/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 13 OF 2001

(ON APPEAL FROM DCCC 516 of 2001)

_________________________

BETWEEN
SECRETARY FOR JUSTICE Applicant
AND
TSE KI WU Respondent

_________________________

CAAR14/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 14 OF 2001

(ON APPEAL FROM DCCC 552 of 2001)

_________________________

BETWEEN
SECRETARY FOR JUSTICE Applicant
AND
NG KIT 1st Respondent
CHAN TAT WAH 2nd Respondent

_________________________

CACC439/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 439 OF 2001

(ON APPEAL FROM DCCC 516 OF 2001)

_________________________

BETWEEN
HKSAR Respondent
AND
TSE KI WU Applicant

_________________________

CACC457/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 457 OF 2001

(ON APPEAL FROM DCCC 552 OF 2001)

_________________________

BETWEEN
HKSAR Respondent
AND
CHAN TAT WAH Applicant

_________________________

Coram: Hon Leong CJHC, Woo & Cheung JJA in Court

Date of Hearing: 5 November 2001

Date of Judgment: 5 November 2001

_______________

J U D G M E N T

_______________

Hon Leong CJHC (giving the judgment of the Court) :

Leave to appeal against conviction in CACC439/2001

1. The defendant Tse Ki Wu was convicted in the District Court after trial of the 1st charge of burglary and was sentenced to 3 years' imprisonment. He now applies for leave to appeal against conviction in respect of the burglary charge. Tse had not advanced any grounds in his Notice of Appeal and today he addressed this court that he did not think that the trial was fair and he was wrongly convicted.

2. The prosecution's case against him was based on the circumstantial evidence which consisted of his being found by the police wearing only one shoe and having a torn T-shirt beside him. The other shoe of the pair he was wearing was found in the balcony of the victim who testified that he tore the T-shirt of the burglar when he struggled with the burglar. The trial judge inferred from these circumstances that the defendant had broken into the victim's premises. We are of the opinion that from the evidence accepted by the trial judge it was reasonable for the trial judge to draw the only inference that the defendant had intruded into the victim's premises. The conviction of burglary was fully justified. There is no substance in this application for leave to appeal against conviction. The application is dismissed.

Leave to appeal against sentence in CACC439/2001 and CACC457/2001 and Application for review of sentence in CAAR13/2001 and CAAR14/2001

3. There are two cases before this court: DCCC516/2001 and DCCC552/2001.

4. In DCCC516/2001 the defendant Tse Ki Wu who came from Fujian was convicted in the District Court after trial of the 1st charge of burglary and was sentenced to 3 years' imprisonment. He pleaded guilty to the 2nd charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and was sentenced to 12 months' imprisonment, consecutive. The total of 4 years' imprisonment was reduced by the trial judge by two months to 3 years and 10 months.

5. Tse Ki Wu has applied for leave to appeal against the conviction on the burglary charge. For the reasons we gave this morning, this application was dismissed. Tse Ki Wu has also applied for leave to appeal against sentence on the immigration charge. The ground of appeal advanced before us this morning by him is that his family is in Mainland China and has financial difficulty in coming to visit him in prison and he asks us to reduce his sentence.

6. In DCCC552/2001 the 1st defendant Ng Kit who came from Jiangsu pleaded guilty to one charge of aggravated burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to 2 years and 2 months' imprisonment on the 1st charge and 12 months' imprisonment on the 2nd charge, consecutive. These are sentences after a one-third discount had been made from their respective starting point. The trial judge had made a further reduction of 2 months from the total sentence. This defendant has not made any application for leave to appeal against sentence.

7. The 2nd defendant in the same case, Chan Tat Wah was sentenced to 2 years' imprisonment on his plea to the 1st charge of burglary and to 12 months' imprisonment consecutive on his plea to the charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. These are sentences which have been reduced by one- third. The trial judge in this case also gave a further reduction of 2 months on the total sentence of 3 years. The 2nd defendant applies for leave to appeal against sentence on the ground that he is the family's major breadwinner and he came here to find work. He misses his family.

8. The Secretary for Justice with leave from me has applied for a review of the sentences of all three of the defendants in these two cases.

9. As regards Tse Ki Wu's application for leave to appeal against the sentence of 12 months on the immigration conviction, the opinion of this court is that the sentence cannot be regarded as manifestly excessive. The normal sentence for an offence of this nature on a plea of guilty is that set down in R v So Man King and Others [1989] 1 HKLR 142 i.e. 15 months' imprisonment. No circumstances justifying a departure from this have been advanced by him. In any event, he should be satisfied that a lower than normal sentence had been imposed by the trial judge. His application must be dismissed.

10. As regards the 2nd defendant Chan Tat Wah in DCCC552/2001, his leave application is to appeal against the sentence of 2 years and 10 months on his burglary and immigration convictions. His grounds are simply that he sneaked into Hong Kong by swimming. On the way he lost all his possessions. Because he was hungry, he and the 1st defendant intruded into private premises to find food and water. In our opinion 2 years for domestic burglary after plea is in line with the authorities. No circumstances justifying a departure from the normal sentences of 15 months for the immigration charge are present in his case. The total of 2 years and 10 months in all the circumstances cannot be regarded as manifestly excessive. This application must also be dismissed.

11. We now come to the two applications for review of sentence. Both applications involved the same issues: the trial judge was wrong in principle to follow HKSAR v Rohrer [2001] 3 HKLRD 175 which is not applicable to Chinese mainlanders and the trial judge was wrong to have given a further two-month reduction to the sentences of the three defendants on account of their being Chinese nationals coming from the Mainland and because of their different cultural and social background and their language handicap which make it difficult for them to assimilate in prison, imprisonment in Hong Kong would be harsher to them...

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