Case Detail

CACC000465A/2002

CACC465/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.465 OF 2002

(ON APPEAL FROM DCCC 537 of 2002)

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BETWEEN
	HKSAR	Respondent

	AND

	LI MO KANG (李武更)	Applicant

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Coram: Hon Stock JA, Gall and Burrell JJ in Court

Date of Hearing: 15 January 2004

Date of Judgment: 15 January 2004

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J U D G M E N T

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Hon Gall J (giving the judgment of the Court) :

1. The applicant was convicted by H.H. Judge Poon in the District Court on 23 August 2002 of one charge of attempted burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. He entered a plea of not guilty to the offence of attempted burglary and a plea of guilty to the charge of unlawfully remaining in Hong Kong without authority of the Director of Immigration. He was sentenced on the same day to three years' imprisonment for the attempted burglary and 15 months' imprisonment for remaining in Hong Kong without lawful authority. Ten months of the sentence on the second charge were ordered to be served consecutively with the attempted burglary sentence. The total sentence amounted to three years and ten months.

2. The applicant sought leave to appeal the conviction in respect of the attempted burglary and the sentences in respect of both charges. On 11 April 2003 the Chief Judge refused him leave to appeal both the conviction and the sentences. He now seeks to renew his application for leave to appeal his conviction in relation to the attempted burglary charge and the sentences in relation to both charges out of time. By his application for leave dated 23 July 2003 and in his supporting affirmation of 30 October 2003 the applicant claims that time passed too quickly for him to appeal in time and that he misunderstood the notice of the refusal by the Chief Judge to grant him leave in respect of the notice relating to the time limit.

3. The evidence of the prosecution in respect of the attempted burglary charge was that the applicant was seen by two domestic helpers at large premises on The Peak. He was peering over the wall that surrounded the house having approached the house through the undergrowth up the hillside. One helper kept watch on the applicant whilst the other telephoned the police. The helper who kept watch gestured to the applicant not to enter the premises. The applicant was seen to climb over the wall of the premises into the garden then dash to the main door of the premises and try to open it. He was unable to do so because it was locked. The applicant then tried to climb the hillside adjacent to the premises but failed. He ran to the wall of the kitchen and tried to open a window. At some stage during his movement around the house he took an orange from an altar and ate it. The police arrived and found the applicant in the garden. He was unable to produce identification to the police and unable to communicate with them as he did not speak Punti.

4. The applicant, who was represented at trial by Mr Paul Kwong, a solicitor, gave evidence and said that whilst outside the wall he had gestured to one of the domestic helpers that he was hungry and that the response was a gesture he took as an invitation to enter. Today he tells us that there was a gesture from the domestic helper but it was to tell him to leave and he understood fully that they were trying to drive him away the premises. He nonetheless climbed over the wall. At the trial he denied trying the front door but said he touched the door in admiration of its craftsmanship. He admitted touching the kitchen window to see if there was food inside to satisfy his hunger. He admitted taking and eating the orange but claimed he was given permission to do so by one of the domestic helpers. He repeated that allegation this morning.

5. The judge found the two domestic helpers to be witnesses of truth upon whom she could rely. She found the applicant was evasive and not worthy of belief. She noted that parts of the evidence of the applicant relating to the gesture of invitation to enter claimed to have been given by one of the domestic helpers was never put to the prosecution witnesses nor was the claimed permission to take and eat the orange.

6. In his grounds of appeal, the applicant says that in giving evidence he forgot to mention two further points in his favour, that such was his fervent wish to visit Hong Kong, he would not have wanted to spoil it by committing an offence here; and that he was immature and innocent. Even had the applicant mentioned these two points at the trial, neither would have made any difference to the judge's verdict. The judge found the applicant to have been a thoroughly unsatisfactory witness. They were the only two written grounds of appeal and nothing said by the applicant to us this morning has amounted to any further grounds of appeal in respect of the conviction.

7. The judge fully considered all the evidence before her and the arguments of the solicitor representing the applicant. No criticism can be made of her findings either as to credit or as to fact.

8. As to the sentences, the learned judge adopted a starting point of three years for the attempted burglary. She did this by reference to the fact that domestic premises were involved though the relevant charge was one of attempted burglary. This is a proper approach. The sentence cannot be said to have been manifestly excessive. On the facts, there is little to distinguish between the attempt to burgle and the completed offence.

9. As to the second charge, the sentence of 15 months' accords with previous sentences passed by the courts even on a guilty plea. Again, the learned judge has not erred as a matter of principle.

10. The judge imposed an overall sentence of three years and ten months. Ten months of the 15-month sentence for the second charge were ordered to run consecutively to the sentence for the first charge. The judge did this taking into account the fact that there was no loss or damage to the property and no injury to any person. She also took into account the totality principle. The sentence she arrived at was not wrong in principle nor was it manifestly excessive.

11. Leave to appeal out of time against both conviction and sentences is refused.

(F. Stock)	(T.M. Gall)	(M.P. Burrell)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

Representation:

Mr Simon Tam, SGC of Department of Justice, for the Respondent

Applicant in person

CACC000465/2002

CACC 465/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 465 OF 2002

(ON APPEAL FROM DCCC 537 OF 2002)

______________

BETWEEN
	HKSAR	Respondent

	AND

	LEE MO KANG	Applicant

______________

Coram: Hon Ma JA in Court

Dates of Hearing: 18 February 2003 and 11 April 2003

Date of Judgment: 11 April 2003

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J U D G M E N T

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1. On 23 August 2002, the Applicant was convicted in the District Court of attempted burglary and remaining in Hong Kong without the authority of the Director of Immigration. He had pleaded not guilty to the offence of attempted burglary but admitted the second offence. On the same day, he was sentenced to 3 years for the attempted burglary and 15 months for remaining in Hong Kong without lawful authority, 10 months of which were to be served consecutively to the attempted burglary sentence. In total the sentence amounts to 3 years and 10 months.

2. He now seeks leave to appeal against both conviction (but only in relation to the attempted burglary charge) and sentence (in relation to both charges).

3. On the attempted burglary charge, the Applicant was convicted on the testimony of two witnesses who were domestic helpers at the house where the offence took place. He was observed trying the door handles of the front door of the house, then attempting to escape and finally, when he could not, trying to enter the premises by the kitchen via the door and windows at that part of the house. At some stage he must have done so because he took an orange from the premises. The two witnesses were believed by the judge.

4. The Applicant's version of events (essentially that he was given permission to enter the house) was rejected. H.H. Judge Poon found the Applicant evasive and a witness not worthy of belief and also said that he was making up evidence as he went along.

5. In my judgment, the learned judge was perfectly entitled to make the findings that she did.

6. In his grounds of appeal, the Applicant says that in giving evidence he forgot to mention two further points in his favour, namely (1) that such was his fervent wish to visit Hong Kong, that he could not have wanted to spoil it by committing an offence here; and (2) the learned judge failed to take into account the fact that he was immature and innocent. Even if the Applicant had mentioned these two points, I doubt very much whether it would have made any difference to the judge's verdict. It is important to be reminded that the judge found the Applicant to have been a thoroughly unsatisfactory witness. Before me this morning and at the hearing on 18 February 2003, the Applicant has protested his innocence, denied the offence of attempted burglary and has stated his love for Hong Kong and other matters, some of which were raised before the trial judge. These aspects do not advance the matter much further at all.

7. I therefore dismiss the application for leave to appeal against conviction.

8. As to sentence, the learned judge adopted a starting point of 3 years for the attempted burglary. She did this by reference to the fact that domestic premises were involved though the relevant charge was one of attempted burglary. I see no grounds to impugn the judge's approach. The sentence cannot be said to have been manifestly excessive in the present case. On the facts, there is not much distinction between the attempt to burgle and the completed offence. Indeed, the Applicant could well have been charged with the completed offence.

9. As to the second charge, the sentence of 15 months accords with previous sentences passed by the courts even on a guilty plea. Again, the learned judge has not erred as a matter of principle.

10. The learned judge has imposed an overall sentence of 3 years and 10 months. Ten of the 15 month sentence for the second charge were ordered to run consecutively to the sentence for the first charge. The judge did this taking into account the fact that there was no loss or damage to the property and no injury to any person. She also took into account the totality principle. This was not wrong in principle.

11. When the learned judge sentenced the Applicant, she noted that he was then aged 22. At the 18 February 2003 hearing, he informed the court that in fact he was only 16 years old. While this did not affect the appeal against conviction, if it were true, it might have had some bearing on the sentence passed by the learned judge. At that hearing, I was informed by the Applicant that for various reasons which I found implausible, he had not hitherto informed anyone of this. Nevertheless I adjourned the hearing to allow the Applicant to produce evidence in support of this new allegation, such as his birth certificate, school records or any other official document which would indicate his true age. He has been unable to produce any such document to support the assertion that he is only 16 years old. This morning he has been unable to produce any document verifying his age other than some letters from his younger brother referring to the fact that they were teenagers, from his mother saying he is young and from his former schoolmate. These letters do not prove his age at all, certainly not that he is only 16 years old. I find nothing in this new assertion.

12. Accordingly, I refuse leave to appeal against both conviction and sentence.

	(Geoffrey Ma)
	Justice of Appeal

Representation:

Ms Grace Chan, SGC, of the Department of Justice, for the Respondent.

Applicant in person.

HKSAR v. LI MO KANG

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