HKSAR v. Leung Yam Cheung

HCMA001097/2001

HCMA 1097/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1097 OF 2001

(ON APPEAL FROM NKCC 6059 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 28 November 2001

Date of Judgment: 28 November 2001

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J U D G M E N T

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1.This is an appeal against sentence only.

2.The appellant pleaded guilty to an offence of pick-pocketing contrary to section 9 of the Theft Ordinance, Cap. 210 before a magistrate of the North Kowloon Magistracy.

3.The facts of the case were that the appellant, together with an accomplice, had gone into an off-course betting center in Kweilin Street in Sham Shui Po and that both of them were observed by police officers. The appellant was seen to go up to the victim in that betting shop and unzip the pocket of the victim's trousers. After the appellant had done that, his accomplice then removed the wallet from that pocket and then passed it on in turn to the appellant. Both the appellant and his accomplice then left the betting center and were subsequently intercepted by the police officers. The appellant threw the wallet to the ground immediately before he was intercepted.

4.The only mitigation advanced on behalf of the appellant was his guilty plea.

5.The Magistrate, in considering the starting point of sentence, looked at the appellant's criminal record. The appellant has 13 previous convictions, the majority of which are for similar offences. That criminal records stretches from 1983 through to 1999, and shows a continuing commission of attempted thefts and related offences, including giving false information to pawnbrokers.

6.The learned Magistrate in respect of the appellant's criminal record said this:

"Looking at the records of the defendants and the circumstances in which the offence was committed, both defendants are professional pickpockets."

7.Given the method of the theft itself in the case before him and the history of the appellant as shown in his criminal record, that conclusion by the learned Magistrate was inevitable and proper.

8.The learned Magistrate turned then to cases which had been put before him involving the appropriate starting point for professional pick-pockets. They were the cases of R v Nguyen Phan Linh CACC 454/1989 and HKSAR v Chen Juting MA 705/1999. Those cases suggested that starting points between 2 and 21/2 years were appropriate for such an offence. That was at the level of starting point the learned Magistrate adopted.

9.No criticism can be made of the Magistrate's approach in that starting point of that sentence. He was entitled to look at the criminal record of the appellant in that regard. From the case of HKSAR v Chan Pui-chi [1999] 848 referred to by the learned Magistrate, he adopts the comments of Stuart-Moore VP as follows:

"Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this Applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest."

That is a principle which is recognized in Hong Kong sentencing law and for that reason the Magistrate concluded also that the starting point of 2 years was appropriate. Given the failure of earlier lesser sentences to have had any deterrent effect upon the appellant, that cannot be criticized.

10.Accordingly, there is no merit in this appeal against sentence and it is dismissed.

Representation:

Mr Gavin Shiu, SADPP (Ag.) of the Department of Justice, for the Respondent

Appellant in person