Hong Kong Judgment

Court of First Instance

HKSAR v. YEUNG CHOI MING

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Source document

01

Holding and result

The court upheld the 21 months' imprisonment because the appellant's repeated identical offences and history of prior custodial sentences justified an increased sentence and the asserted humanitarian circumstances were not sufficiently strong to warrant reduction.

Court disposition

Appeal dismissed; sentence of 21 months' imprisonment upheld

Orders

  • Sentence of 21 months' imprisonment affirmed

02

Material facts

Parties

The Appellant

Appellant

The Prosecution

Respondent

Amounts and remedies

  • Imprisonment Months: 21
  • Prior Similar Offences Count: 5

03

Procedural history

  1. Posture

    Appeal Against Sentence for Unlawfully Remaining in Hong Kong / Judgment Delivered

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant pleaded guilty and sought reduction of sentence on humanitarian grounds: father with heart disease, elder brother seriously injured in a car accident, brother's wife has absconded leaving a child in need of care.
Respondent
Prosecution maintained that the appellant is a habitual offender with five prior identical convictions between 2000 and 2005 and that recidivism justifies an increased sentence of 21 months; the asserted humanitarian facts do not outweigh the appellant's deliberate risk of being absent when domestic matters arose.

05

Court’s reasoning

  1. 01

    Sentencing principles and the court's reasoning in this judgment

    Recidivism justifies escalation of sentence for repeated identical offences

  2. 02

    Sentencing jurisprudence and the court's reasoning in this judgment

    Humanitarian circumstances can mitigate sentence but must be sufficiently strong to outweigh public protection and deterrence considerations

06

Ratio, limits and disposition

Ratio decidendi

The court upheld the 21 months' imprisonment because the appellant's repeated identical offences and history of prior custodial sentences justified an increased sentence and the asserted humanitarian circumstances were not sufficiently strong to warrant reduction.

Obiter and limits

  • If you keep committing the same crime, you will get a bigger sentence.
  • The appellant knowingly took the risk of being absent from home and therefore cannot rely on resulting domestic difficulties as strong humanitarian grounds to reduce sentence.

Court disposition

Appeal dismissed; sentence of 21 months' imprisonment upheld

  • Sentence of 21 months' imprisonment affirmed

Source and reliance status

Court of First Instance · 28 March 2007

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Judgment text

The complete available source text.

Source document

Court of First Instance

Judgment· 28 March 2007

HKSAR v. YEUNG CHOI MING

bjbjU d8nv JiMb pellant _____ Coram: Deputy High Court Judge Line in Court Dates of Hearing: 28 March 2007 Date of Judgment: 28 March 2007 ____

J U D G M E N T ____ This is an appeal against sentence for unlawfully remaining in Hong Kong. The appellant pleaded guilty and received 21 months' imprisonment. It had been increased from the habitual 15 months by reason of the fact that on five previous occasions beginning in the year 2000 and going up to the year 2005, he had committed identical offences and had been sentenced then to terms of either 15 months, 18 months or 21 months. It goes without saying if you keep committing the same crime, you will get a bigger sentence and there is nothing wrong with a sentence of 21 months' imprisonment for this. The appellant today does not really disagree with that. What he seeks to do is to say that he has had a telephone call from home saying that his father has heart disease, that his elder brother has had a car accident and is seriously indisposed, and that the brother s wife has run away leaving a child in need of care. Even if all of those matters are true, they do not, in my judgment, amount to strong enough humanitarian grounds that would reduce the sentence. The history of convictions demonstrates that this appellant well knew what would happen if he was caught and he therefore knowingly took the risk of absenting himself from his own home and so being absent when domestic matters, such as he has described, arise. The JiMb son

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