HKSAR v. Butt Ummar

HCMA 92/2020

[2020] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 92 OF 2020

(ON APPEAL FROM WKCC 748 OF 2020)

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REASONS FOR JUDGMENT

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1.The appellant pleaded guilty to the following two offences:

Charge 1: Theft[1]; and

Charge 2: Common assault[2].

2.On 17 April 2020, the Principal Magistrate[3] sentenced him to imprisonment terms of 2 months and 6 months respectively and further ordered the two sentences to run consecutively, making a total sentence of 8 months’ imprisonment.  The appellant appeals against the sentences.

3.At the appeal hearing, having heard submission from both parties, I allowed the appeal to the extent that the total sentence be reduced from 8 months to 7 months.  These are the reasons for the decision.

FACTS[4]

4.The facts of the case are simple.  At about 2:30 am, a staff of the supermarket in question noted the appellant to have stolen a pack of almonds.  When the appellant left the shop he chased after him.  The appellant grabbed a bamboo stick and beaten the staff, and then fled.  A report was made to the police.  The appellant was arrested soon in the vicinity.

MITIGATION SUBMISSION FOR THE APPELLANT[5]

5.Counsel[6] told the Principal Magistrate that the appellant is 46 years old.  He came alone from Pakistan in 1996 and is now a permanent resident.  He worked as a lorry attendant earning about $16,000 a month.

6.Counsel said the appellant stole the almond as he had no money to pay and he hit the staff because he felt angry and committed the offence out of impulse.

7.He stressed that the appellant pleaded guilty at the earliest opportunity and urged the court to take into account that the stolen goods was of low value and had been recovered; and also that the injury suffered by the staff was not serious.

CRIMINAL CONVICTION RECORD OF THE APPELLANT

8.The appellant had on 16 previous occasions been convicted.[7] He was convicted for theft in 2013 and 2016, for burglary in 2016, for making off without payment in 2011, for common assault in 2010, for assaulting a police officer in 2013, and for resisting a police officer in 2016.  Besides, he was on one occasion convicted for trafficking in dangerous drug and on four occasions convicted for possession of dangerous drug.  The other offences he had committed were Breach of condition of stay, misleading a police officer, making false statement to Immigration Officer, criminal damage, indecent assault and drunk and disorderly.

CONSIDERATION OF THE PRINCIPAL MAGISTRATE

9.The Principal Magistrate took into account the following matters[8]:

(1)     nature and facts of the case;

(2)     background of the appellant; and

(3)     his criminal conviction record.

10.The Principal Magistrate described the appellant as greedy and was of the view that the appellant’s getting away “by assaulting the staff who was just performing his duties made it more serious; even worse was with weapon”[9].

11.The Principal Magistrate adopted 3 months and 9 months respectively as the starting points for the two charges and gave the appellant 1/3 discount for his early guilty pleas.  Having regard to the fact that the two charges were of different nature and for different purpose, he ordered the two sentences to run wholly consecutively.

GROUNDS OF APPEAL

12.The appellant appeared in person for the appeal.  Apart from filing the notice of appeal in which the general ground that the “sentence was too severe” was printed[10], no specific ground was stated.

13.At the hearing, the appellant told the court that he did what he had admitted as the staff grabbed him from behind and he was under influence of alcohol at the time.  He also stressed that photographs taken of the staff did not show any injury.

DISCUSSION

14.The case started with the conduct of shop lifting.  As seen, the appellant had been convicted on several occasions for various dishonesty related offences.

15.In a line of decisions[11], the following general guidance in sentencing has been set out:

(1)   the number and value of the items stolen are highly relevant factors;

(2)   generally speaking, a first offender of shop lifting will be fined, unless the offence involves organized conduct, or that the number or value of the items stolen is high;

(3)   previous record of similar offences is aggravating factor and custodial sentence should be considered, but if the value of the item stolen is low further chance may be considered; and

(4)   if the previous record is numerous, number and value of the stolen items will carry much less weight and deterrent sentence should be imposed unless the offender has mental problem, usual sentence is at the range of 9 ‑ 12 months.

16.It is obvious that what the Principal Magistrate had considered were all relevant matters and he had not neglected any relevant matters.

17.The assault in the present case was serious in the sense that:

(1)   the victim was performing his duty trying to stop the appellant from going away after stealing;

(2)   the appellant used a bamboo stick to hit the victim; and

(3)   he did so with a view to escape and he succeeded.

18.Besides, the appellant had previous convictions similar or akin to assault.

19.I have no doubt that the starting point adopted by the Principal Magistrate for the theft charge is not excessive, despite the item stolen had been recovered and returned to the shop.

20.As regards the common assault charge, the Principal Magistrate mentioned that the staff suffered tenderness as a result.  That explains why the photograph did not show any injury.  The injury suffered by the staff was not serious but the circumstances in which the offence was committed was.  I agreed with the observations of the Principal Magistrate[12]. Besides, the previous record of the appellant using force against others[13] should not be ignored. In all the circumstances, bearing in mind the aggravating features, I was of the view that a starting point of 7 ½ months is sufficient for Charge 2.

21.The defendant pleaded guilty at the earliest opportunity and is therefore entitled to a 1/3 discount.

22.Under section 119(1)(e) of the Magistrates Ordinance[14], I have the power “to award any punishment whether more or less severe than that awarded by the magistrate, whether the magistrate might have awarded”.

23.By reasons of the matters aforesaid, in my judgment the appropriate sentences are:

Charge 1: 2 months; and

Charge 2: 5 months.

24.I have no doubt the Principle Magistrate had applied his mind to the totality principle when he ordered the two sentences to run consecutively.  In the circumstances of this case, applying the principle in HKSAR v Ngai Yiu Ching[15], he cannot be said to have erred.

25.Having considered the whole circumstances of the case, I considered a total sentence of 7 months appropriate.

26.For the abovesaid reasons, I allowed the appeal and substitute the following sentences:

Charge 1: 2 months; and

Charge 2: 5 months.

27.I further ordered the two sentences to run wholly consecutively to each other, making a total sentence of 7 months.

Miss Ho May Yu, Lily, SPP of Department of Justice, for the respondent

The appellant appeared in person