R. v. Lee Hau Wai

HCMA000448/1995

IN THE HIGH COURT

1995, No. 448
Magistracy Appeal

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Coram: Hon Litton, V.P. sitting as an additional High Court Judge

Date of hearing: 9 June 1995

Date of judgment: 9 June 1995

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J U D G M E N T

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Litton, V.-P.:

1. This is an appeal against sentence. The appellant aged 35 pleaded before Ms Loh at the Kwun Tong Magistracy on one charge and was sentenced to three weeks' imprisonment and ordered to pay compensation totalling $2000.

2. The offence was committed in May 1994 when the appellant who was D2 at the trial procured one Tsang Man Lung (D1) to damage the lifts at the King Lam Estate and Tsui Lam Estate contrary to section 60(1) and section 63(2) of the Crimes Ordinance.

3. The first accused who did the criminal damage at the behest of this appellant was 18 years old at the time and was subsequently sentenced to serve 80 hours of community service and to pay $1000 compensation on each of the two charges on which he was convicted. Essentially this appeal is on the ground that there is such disparity between the appellant's sentence and that of D1 that this court should interfere.

4. Counsel Mr Lee accepts that by itself the sentence on the appellant is not manifestly excessive and relies solely upon this disparity between the treatment of the appellant and that of the first accused as the reason for this court's interference. The magistrate had weighed the circumstances very carefully in this case. She adverted to the key role played by the appellant: essentially, the activity which constituted the charge was to put stamps on the ceilings of the lifts in the housing estates to advertise a loan-sharking business. As the person who instigated the commission of the crime the appellant should in principle deserve a heavier sentence. There is also the discrepancy in age.

5. In my judgment there is no substance in this ground of appeal and the appeal is dismissed.

Representation:

Mr Wesley W.C. Wong (Crown Prosecutor) for Respondent/Crown

Mr Lambert K.C. Lee (M/S Anthony Kwan & Co.) for Appellant/Defendant