HKSAR v. Galvis Sila Paola Andrea

HCMA 274/2020

[2020] HKCFI 3107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 274 OF 2020

(ON APPEAL FROM KCCC 2169 OF 2020)

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Before: Hon Toh J in Court

Date of Hearing: 23 November 2020

Date of Judgment: 23 November 2020

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J U D G M E N T

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1.The appellant was charged in the magistrate’s court with one count of theft, contrary to Section 9 of the Theft Ordinance. She had pleaded guilty and was sentenced to 4 months’ imprisonment. She now appeals against her sentence and she is unrepresented.

2.The facts are all too familiar, in the afternoon of the 29 August 2020, the appellant was seen together with two children, one was a baby in a baby stroller and she was seen taking items from the shop and when she left the shop without making payment, she was intercepted and in total the stolen items to the value of about HK$3,544 were recovered from the baby stroller and the handbag.  In a record of interview subsequently she admitted that she stole the items out of greed and that she admitted that she left the store without payment.  At the time of arrest, the appellant had just HK$1,000 cash on her. 

3.The appellant is 31 years old and is a Form 8 holder in Hong Kong.  She was originally from Colombia and she is a single mother and she has two daughters and she relied on the ISS for financial support.  The appellant has a very poor record. She has all along in Hong Kong been abusing her position as a Form 8 holder by committing criminal offences time after time.  Apart from drug convictions, she was also convicted in 2018 with attempted fraud for which she was sentenced to imprisonment.  She was also charged with theft and that was in 2018.  The appellant’s grounds of appeal are that she considered the sentence to be manifestly excessive and she asked that she be allowed to be released to take care of her daughters.  She has not exhibited any sign of being a good mother.  In fact, on the last occasion, she took her children to commit this crime.  So I cannot believe that she has any intention of becoming a good mother.  In the magistrate’s court, it has already been raised before the learned magistrate that her daughter needed to be taken care of and the magistrate was told in court by her solicitor that the boyfriend of the appellant was willing to take care of her daughter and that he in fact had employed a domestic worker to help him to take care of her.  So there is no exceptional circumstances in this case in relation to the children. 

4.However, as Mr Au-Yeung correctly pointed out the learned magistrate correctly concluded there was aggravating factors in this case.  First, that the appellant being a Form 8 holder has abused her stay in Hong Kong as a Form 8 holder by committing a crime.  Also the appellant has got a very bad record and in the circumstances, I do not at all consider that this sentence was manifestly excessive or wrong in principle.  So the appeal is dismissed.

Mr Dimitri Au-Yeung, PP of the Department of Justice, for the respondent

The appellant appeared in person