R. v. To Ping

HCMA000950/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 950 OF 1996

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Coram: Stuart-Moore, J. in Court

Date of Hearing : 1 October 1996

Date of Judgment: 1 October 1996

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J U D G M E N T

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1. On 8 July 1996, this Appellant was sentenced to a total of 12 months' imprisonment by Mr. Tam sitting at Shatin Magistrates' Court. He had pleaded guilty to two offences. The first charge was theft, contrary to section 9 of the Theft Ordinance, of a clock, a radio and a small amount of currency. For this, he received one month's imprisonment. The second charge was remaining in Hong Kong without the authority of the Director of Immigration, having landed unlawfully in Hong Kong. The 12 months' sentence imposed for this offence was made concurrent to the sentence on the first charge.

2. The Appellant was 23. The guidelines of R. v. So Man-king [1988] HKLR (1) 142 C.A. clearly indicate that a sentence in such a case as this would normally be 15 months' imprisonment.

3. The only mitigating factor that the Magistrate took into account was that the Appellant was aged 23 and he expressed himself in his Reasons for Sentence in this way:

"In deciding the sentence to impose, I gave the Appellant undue consideration to his relatively young age and departed from the 15 months' imprisonment guideline, spelt out in R. v. SO Man-king."

This was not a factor which should have been taken into account, because this Appellant, like others in his age bracket, is quite old enough to know the consequences of his actions. I think the sentence ought to have been 15 months. I do not propose to raise it. On the other hand, I certainly do not propose to reduce it.

4. The appeal is dismissed.

Representation:

Mr. P.G. Saw for Crown.

Appellant in person.