HKSAR v. Yip Kin Kiu

HCMA001229/2002

HCMA 1229/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1229 OF 2002

(ON APPEAL FROM TWCC 2691/2002)

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Coram: Deputy High Court Judge Barnes in Court

Date of Hearing: 22 January 2003

Date of Judgment: 22 January 2003

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J U D G M E N T

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Introduction

1.The Appellant pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and a charge of making off without payment, contrary to section 18C of the said Theft Ordinance. He was sentenced to 4 months imprisonment for the 1st charge, 2 months for the 2nd charge, totalling 6 months imprisonment. He was also ordered to pay compensation in the sum of HK$500.00 to the victim of the 1st charge. He appeals against sentence.

Facts of the case

2.At 0605 hours on 20 September 2002, the Appellant stopped a taxi outside "Sunning Food Supermarket" at Ho Pui Street, Tsuen Wan. Before getting on board, the Appellant picked up seven large bags of steak and squid from the ground and put them into the passenger seat. The Appellant then ordered the taxi to go to Fu Tai House in Tai Wo Hau Estate. Upon arrival at Fu Tai House, the Appellant said he had no money to pay the taxi fare of HK$20.60 and offered a bag of steak to the driver. The driver refused and the Appellant left the taxi without paying the fare. A report was made to the police.

3.A policeman responded to the scene and after viewing the CCTV at Fu Tai House, he located the Appellant and retrieved the stolen bags of steak and squid at the Appellant's home. The Appellant was arrested. Under caution, the Appellant admitted stealing the bags outside "Sunning Food Supermarket". The proprietor of "Sunning Food Supermarket" confirmed that the steak and squid were missing after the transportation worker delivered them on the pavement outside his store.

Grounds of appeal

4.Ms Lee, on behalf of the Appellant, filed 3 grounds of appeal:-

(1) The learned Magistrate erred in principle in making a compensation order of HK$500.00 to be paid to the owner of the property when there is no evidence of loss or damage suffered.

(2) The learned Magistrate erred in ordering the sentence of 2 months imprisonment to run consecutively to the sentence of 4 months imprisonment imposed in respect of 1st charge in that he failed to consider the commission of the two offences were inter-connected and he failed to have sufficient regard to the totality principle.

(3) In all the circumstances of the case, the sentence of 2 months imprisonment imposed in respect of the 2nd charge is manifestly excessive.

5.Ms Lee complained that the learned Magistrate had failed to take into account that the two offences were a series of actions in moving the meat away. Ms Lee had no complaint regarding the starting point of 6 months adopted for the 1st offence (i.e. stealing the meat). She submitted, however, that the starting point of 3 months, even taking into consideration the Appellant's previous convictions was too severe as the amount of the fare was about HK$20.00.

The Respondent's response

6.Ms Leung for the Respondent made the following responses:

(1) The stolen property had been returned to the owner. The Respondent is not going to dispute that compensation order was not appropriate in this case.

(2) The learned Magistrate did consider the totality principle. In his Reasons for Sentence, he took the view for the two instant offences that each was independently planned, executed and committed on bail. He found they were not part of an overall offence, he therefore ordered the two sentences to run consecutively to each other.

(3) The learned Magistrate took a starting point of 3 months imprisonment for making off without payment after taking into account the value of the trip (i.e. HK$20.60), the carefully planned calling of the taxi knowing he had no money and the offence was committed whilst on bail.

Ms Leung submitted apart from the compensation order, the sentences imposed were not wrong in principle nor manifestly excessive.

Judgment

7.Ms Leung for the Respondent has very fairly conceded that the compensation order was not appropriate in this case. To be fair to the learned Magistrate, I wish to point out that it was not clear on the facts before him that the meat had been returned to the owner. In fact, it was through the application of the prosecution that a compensation order was made (Appeal Bundle p. 25). I did wonder whether the meat had gone bad by the time they were returned to the owner, prompting the application. Ms Leung confirmed that the meat were still good when they were returned so there is no question of compensation.

8.I now turn to the second ground of appeal. While the learned Magistrate was correct in saying that the two offences were independently planned, executed and committed while the Appellant was on bail, one cannot ignore the fact that the Appellant must have decided to make use of a taxi as a conveyance when he decided to steal the meat. In that sense, these two offences were indeed inter-related or inter-connected and the learned Magistrate should have given consideration on this point and the sentences should be made partially concurrent.

9.The third ground of appeal. I agree with Ms Lee that a starting point of 3 months was too high for the 2nd charge. The punishment must fit the crime. The Appellant made off with HK$20.60. Comparing that with a starting point of 6 months for stealing HK$2,400.00 worth of meat, the starting point of 3 months was manifestly excessive. I am of the view that the starting point of 4 weeks sufficient for the criminality.

10.With a reduction of 1/3 from the 6 months imposed on the 1st count, the sentence is one of 4 months. The sentence for the 2nd charge with the reduction is one of 18 days. I am of the view that 9 days of the 18 days should run concurrently with the 4 months sentence to reflect the inter-relationship.

11.The appeal is allowed. The compensation order is quashed. The 2 months sentence imposed on the 2nd charge is quashed and substituted by one of 18 days. 9 days of the said 18 days to run concurrently with the 4 months imposed on the 1st charge, making a total of 4 months 9 days. The sentence to run consecutively to the sentence imposed in TWCC 2590/2002.

Representation:

Ms Rosaline S Y Leung, SGC of the Department of Justice, for the Respondent

Ms Alice Lee, instructed by the Legal Aid Department, for the Appellant