HKSAR v. Bam, Raghav

HCMA 22/2024

[2024] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 22 OF 2024

(ON APPEAL FROM KCCC 2074/2023)

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BETWEEN

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J U D G M E N T

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Appeal against Sentence Only

1.The appellant was convicted on his own plea of three counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210. He admitted the Summary of Facts and was sentenced to a total of 14 months’ imprisonment.

2.The appellant now appeals against his sentence. He was represented by the Duty Lawyer Scheme in the court below but unrepresented in this appeal after his legal aid application was refused.

The Facts

3.On a date between 30 June 2023 and 3 July 2023, the appellant admitted stealing 4 welding wires and 4 electric cables valued at a total of HK$24,000 from a construction site on Temple Street. The stolen property belonged to an engineering company working at that site. These are the facts of Charge 1.

4.At 5:20am on 4 July 2023, appellant returned to the same construction site and this time stole seven electric cables valued at HK$20,000. The stolen items had been locked in a box on the construction site. A staff of the victim company came to work at 8am on 4^th July to find the box unlocked and the property stolen. These are the facts of Charge 2.

5.There was CCTV footage of the vicinity, which revealed the appellant as the thief. He was identified by a black bracelet, silver watch and silver necklace worn and seen when he committed the 2^nd Charge.

6.On 7 July 2023, the appellant was located and arrested after he was identified on CCTV. He admitted under caution committing both Charges 1 and 2. He was released on police bail.

7.Whilst on police bail, he stole again from a construction site. This time he stole eight metal signs worth HK$18,000 from a site on Nathan Road. He is seen on CCTV footage stealing the property at 5:25am on 1 August 2023. These are the facts of Charge 3.

8.Two days later, on 3^rd August, he was arrested again and under caution admitted stealing the stolen property of Charge 3. The total loss to victims was HK$62,000. No compensation was paid nor were any stolen items recovered.

The Appellant’s Background

9.The magistrate who passed sentence first obtained a Background Report. At the time of these offences, the appellant had a clear record and was 31 years old. In 2010, he came from Nepal at the age of 18 years old. When he arrived, he spent one year in vocational training before commencing work as a construction site employee. In 2014, he suffered a workplace injury and was diagnosed with post-traumatic stress disorder. He has not worked since this accident.

10.He is married with a young child. His family rely on CSSA financial assistance. His wife was of the view that the appellant had recovered from his injury but remained unemployed. The report revealed the appellant admitting stealing for financial reward. He promised the court that he had gained an insight into his problem, would find employment and look after his family.

The Magistrate’s Reasons for Sentence

11.The magistrate took into account all mitigation put forward and the Background Report. She also took into account the value of all the stolen items was significant. The appellant had sold the property and had no means to compensate the victims.

12.Moreover, Charges 1 and 2 were committed within a five-day period at opportune moments when there were no staff at the construction sites. The third charge was committed within a month of the others, 3 weeks after his arrest for the first two charges and whilst on police bail. The magistrate found the commission of multiple thefts within a short period of time against targeted locations an aggravating factor.

13.Despite his previous clear record, the magistrate was of the view that an immediate custodial sentence was appropriate and adopted a starting point of 12 months’ imprisonment for each of the three charges. She reduced each sentence by 4 months to reflect the appellant’s pleas of guilty and sentenced him to 8 months’ imprisonment on each charge.

14.Having regard to the totality principle, she ordered that 3 months of the sentences of Charges 2 and 3 run consecutively to Charge 1 with the balance served concurrently. Therefore, the appellant was sentenced to a total of 14 months’ imprisonment.

15.Although the appellant had had a clear record when he committed these offences, by the time he was sentenced he was serving a term of imprisonment for another unrelated case. She ordered the 14 months’ imprisonment imposed in this case to run consecutively to the appellant’s sentence he was already serving. She found it appropriate to order it to run consecutively in light of the fact that that sentence was for offences separate and distinct to these thefts.

Grounds of Appeal

16.The appellant relies on the sole ground of appeal as set out in his notice of appeal and that is his sentence was too severe. He also added that he was not satisfied with the sentence.

17.Before me during the appeal, he added that the value of the stolen property of the 1^st Charge was inflated but this was not raised in the court below. He also submitted that there was no evidence against him in relation to the 3^rd Charge but he still pleaded. This was refuted by the respondent who pointed out the admitted facts set out an admission that there was CCTV footage of the appellant stealing during all three offences.

Discussion

18.This appeal is an appeal by way of rehearing. I have examined the transcript of the court proceedings and considered the Reasons for Sentence. I found no error by the magistrate in her starting point for each offence and her approach to sentencing this appellant. In respect of the individual sentences imposed, I find no error.

19.All three offences were committed within a short period of time, the magistrate was quite proper to order that the sentences be served partly consecutively. The appellant is lucky the magistrate did not impose a heavier sentence for the last and 3^rd Charge when there was the aggravating factor of him committing the same offence whilst on bail.

20.The starting points for each charge was not manifestly excessive. The offences were discounted according to the appellant’s plea at the earliest opportunity.

21.The overall sentence imposed is neither manifestly excessive nor wrong in principle. The magistrate was entitled in law to order that this 14-month sentence be served consecutively to other sentences unrelated.

22.There is no merit in the appellant’s complaint or appeal. I, therefore, find that the sentence of the magistrate correct and proper. I dismissed the appeal against sentence.

Ms Lily Yip, Public Prosecutor of Department of Justice, for the Respondent

The appellant appeared in person