HKSAR v. Sarki Raj Kumar

HCMA 507 and 508/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 507 AND 508 OF 2016

(ON APPEAL FROM TMCC NO 2293 AND 2294 OF 2016)

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JUDGMENT

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1.The appellant pleaded guilty in the magistrate’s court to 2 charges of theft which were committed at different times. In the first theft, the subject-matter of HCMA 508/2016, the appellant was sentenced to 2 months imprisonment and in the second theft, the subject-matter of HCMA 507/2016, 3 months imprisonment. 2 months of the sentence of the second theft are to run consecutively to that of the first theft, making a total of 4 months imprisonment.

2.The appellant appeals against the sentences only.

FACTS ADMITTED

3.In the first theft which occurred at about 7:10 pm. on 28 July 2016 the anti-theft alarm was triggered when the appellant left a Park N Shop Supermarket.  A staff member of the supermarket intercepted the appellant by grabbing his rucksack, but the appellant abandoned the rucksack and fled.  Inside the rucksack there were 15 packets of chocolate and one can of milk powder which had not been paid for.  The total value of these items was $635.

4.Half an hour later the appellant returned to the supermarket and asked for the return of the rucksack.  Police was called and the appellant was arrested.  He admitted the offence under caution, saying the items were for his own consumption.

5.The second theft took place on 16 August 2016 inside a Wellcome Supermarket.  The appellant put 3 bottles of wine in the value of $431 inside his rucksack and left without making payment.  He was intercepted and arrested.  He admitted under caution stealing the wine out of greed.

GROUNDS OF APPEAL

6.The appellant simply submits that the sentences are too long.

DISCUSSION

7.The appellant is aged 28 and has 3 previous convictions of theft.  They were committed in 2009, 2014 and 2015 for which he was respectively sentenced to a fine of $1,000, a fine of $2,000 and 7 days’ imprisonment suspended for 12 months.

8.In the case of HKSAR v Yang Yan Yun [2014] 1 HKLRD 564 cited by the respondent, the court, after conducting an extensive review of the cases of sentencing pertaining to the offence of shoplifting, said in paragraph 17:

“..... It can be seen from the above sentencing authorities that the courts have invariably sentenced recidivists or persistent offenders to imprisonment or enhanced their sentences. If the item involved is of very small value, such as daily food and beverages, and does not command a high value, the court will most likely impose a fine on a first offender. But where the case involves a repeated offender and an item exceeding $100 in value, the lowest starting point is 3 months’ imprisonment; the more similar previous convictions the defendant has, the higher the starting point will be.”

9.In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 the Court of Appeal in dealing with a repeated drug trafficker said that while an offender should not be sentenced for previous offences for which he had already served the penalty, the constant repetition of the offence itself increased the gravity of the offence and should be reflected in the sentence. The sentences imposed on the appellant for his previous convictions of theft though had become heavier each time, had proved to be no deterrent to the appellant at all.  Under such circumstances, the prevention of further repetition of the offence by the appellant naturally became a prime consideration of the court in sentencing.  There are ample authorities giving effect to the principle that the affront of law demonstrated by a repeated offender is to be treated as an aggravating factor in sentencing with a view to protecting the public from yet further repetition of the offence.

10.The appellant was 27 years old when he committed the 2 thefts in question.  He said in mitigation before the magistrate that he had previously been a construction site worker earning $20,000 a month and had been unemployed for about a month.

11.The appellant is a young man in the prime of his life.  The court is unable to see any reason why he could not find a job to earn his living, instead of resorting to stealing.  He no doubt has no mitigation at all.

12.In view of the authorities, the starting point of 3 months imprisonment adopted by the magistrate for the first theft which was reduced to 2 months imprisonment on a plea of the appellant is neither excessive nor wrong in principle.

13.For the second theft the appellant did not only repeat the offence within a short time, but he also committed it while he was on bail of the first theft.  A starting point of 4 ½ months imprisonment which was reduced to 3 months imprisonment to give credit to the appellant for his plea of guilty is a correct and proper sentence.

14.In HKSAR v Wong Kwong Yin [1995-2000] HKCLR 107 it was said by the Court of Appeal:

“As to whether the sentences should run consecutively, we must make it clear that, where an offender commits a second offence whilst on bail for the first offence, then upon conviction, the sentences for the two offences should run consecutively, particularly so where the two offences are of a similar nature. Were this not the case, the court might be accused of encouraging offenders to commit further offences whilst on bail.”

15.Such principle has been applied and reiterated in a considerable number of authorities.  The magistrate could have made the sentences of the 2 thefts to run consecutively.  She had chosen not to do so. The overall sentence imposed on the appellant can be said to be on the lenient side.  The court is of the view that the complaint of the appellant that the sentences in the present appeals are too long is blatantly unjustified.

CONCLUSION

16.The appeals in both cases are dismissed and the sentences are to stand.

Mr Franco Kuan, SPP of Department of Justice, for the Respondent

The Appellant in person, present