HKSAR v. Walid, Mabrouk Shawky Mohamed

HCMA 712 & 713/2015

MAGISTRACY APPEAL NO 712 & 713 OF 2015

(ON APPEAL FROM KCCC NO 2724 & 3565 OF 2015)

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J U D G M E N T

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1.This is an appeal by the appellant against his sentence of 6 months and 14 days’ imprisonment imposed by Ms Veronica S H Heung, a Magistrate sitting at Kowloon City Magistracy, on 3 November 2015, following his guilty pleas to charges of possession of a dangerous drug (Charge 1) and theft (Charge 2).

2.In the course of the hearing I indicated to the appellant that as this was a rehearing the sentence in relation to Charge 2 could be considered to be extremely lenient and therefore subject to increase.  The appellant sought to abandon his appeal and as he was unfamiliar with the legal processes and acting in person I granted him leave to do so.  I should explain why I consider the sentence on Charge 2 to be extremely lenient and how I would have approached the matter if the appeal had proceeded.

3.Charge 1 took place on 11 August 2015 when the appellant was intercepted by a police officer for a routine check at Tsim Sha Tsui.  Upon a search of his person a cigarette box containing one plastic bag with 2.25 g of a powder with traces of methamphetamine hydrochloride, commonly known as Ice, was found in his possession.

4.Charge 2 took place on 15 October 2015, when the appellant was seen placing a perfume valued at $463 underneath his clothing in a cosmetic retail store at Tsim Sha Tsui.  He was apprehended by security personnel at the store and subsequently arrested by police.  This offence was committed at a time when the appellant was on bail in relation to Charge 1.

5.The case in respect of Charge 1 came on before the Magistrate on 24 September 2015, to which he entered a plea of guilty.  The Magistrate called for a Probation Report and the case was adjourned to 15 October 2015 but he failed to attend. It was the day on which he committed Charge 2.  He had failed to show up at the Probation Office for the purpose of making a Probation Report as ordered. 

6.The case in respect of Charge 2 came on before the Magistrate on 17 October 2015, to which he entered a plea of guilty. 

7.It appears that on 20 October 2015, the appellant again entered a plea of guilty to Charge 1 before the Magistrate who ordered a DATC Report in relation to the appellant.

8.On the day of sentencing, the Magistrate had before her the appellant’s criminal record and a DATC Report which revealed that the appellant was drug dependent but DATC was not recommended because he was an overstayer with a removal order made against him on 26 March 2015.  The appellant had 7 prior convictions for theft on 18 December 2014 (2 charges), 13 February (2 charges), 25 April, 13 August and 5 October 2015, and a prior conviction for assaulting a police officer on 28 January 2015.  With respect to the sentence for theft on 5 October 2015, the appellant was sentenced to 7 days’ imprisonment and just a few days after his release he reoffended as reflected by Charge 2.

9.The Magistrate adopted a starting point of 9 months’ imprisonment in relation to Charge 1 which she reduced by one-third for the appellant’s guilty plea, resulting in a sentence of 6 months’ imprisonment.  The sentence appears to be in line with the guideline provided by the Court of Appeal in HKSAR v Mok Cho-tik [2001] 1 HKC 261 at 267 per Stock JA. 

10.The approach taken by the Magistrate in relation to the sentence on Charge 2 is a different matter.  The Magistrate noted that he was last convicted for shoplifting on 5 October 2015 and 10 days later on the day that he was required to attend court he committed the shoplifting offence as contained in Charge 2. She considered, rightly in my view, that these were aggravating factors and called for a deterrent sentence.  She adopted a starting point of 21 days’ imprisonment which she reduced by one-third for the appellant’s guilty plea, resulting in a sentence of 14 days’ imprisonment.  She noted that the two offences were committed on different dates and were separate and distinct from each other and bearing in mind the overall totality she ordered that the sentences run consecutively to each other. 

11.Where I consider that the Magistrate has seriously erred is in the starting point adopted for Charge 2.  The appellant is a serious repeat offender who has shown a blatant disregard for the law.  He has come to Hong Kong as a visitor on 19 September 2014 and in a period of a little over 12 months has 7 convictions for theft.  In the latest case, he committed the theft whilst on bail and only a few days after his release from prison for a previous similar offence.  These were serious aggravating features to the offence of Charge 2 and entitled the court to enhance the starting point for his sentence. 

12.I consider that a starting point of 9 months’ imprisonment could have been adopted in the circumstances of this case.  Here we have stolen property of the value of $463 which is not insignificant, persistent reoffending, committed a few days after his release from prison for exactly the same offence and also whilst on bail.  The starting point would have been appropriately adjusted to take into account his plea of guilty and the totality principle. 

13.The appellant is indeed fortunate that he has abandoned his appeal against sentence otherwise I would have had no hesitation in increasing it as indicated. 

14.The appeal against sentence is abandoned on the application of the appellant and is therefore dismissed.

Mr Pierre Lui, SPP (Ag) of Department of Justice, for HKSAR

The appellant in person