HKSAR v. Tsang Oi Ming

HCMA000105A/2004

HCMA 105/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 105 OF 2004

(ON APPEAL FROM KCCC 17996/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 14 May 2004

Date of Judgment: 14 May 2004

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J U D G M E N T

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1.I have already delivered the judgment in this appeal on 27 April 2004. The fact of this case is set out therein.

2.As the result of that appeal, this Court did consider that in view of the particular circumstances pertaining to this case and the particular background of the Appellant that the learned Magistrate should have ordered a background report on the Appellant with a view also to getting a Community Service Order report.

3.At the conclusion of that appeal, I had indicated that I will call for these reports but that I do not promise anything without looking at the reports.

4.With much appreciation for the work of the probation service, this court now has in hand a probation background report of the Appellant together with a Community Service Order report. It is clear that the Appellant has all along been a diligent, self-motivated and hardworking person in the 53 years of her life, she had never committed any offences. She has a good family and the report also shows that the Appellant has the support of her family and friends. She was not only a filial daughter, a responsible wife and a concerned mother, she was also, according to the Probation Officer, a trust worthy person to her friend. She has led a decent life and there has never been any indication of undesirable association or involvement in illegal activity. The Probation Officer was of the view that this present offence was an isolated care and that the Appellant had shown genuine remorse.

5.The Appellant, because of the circumstances of the case and her background, falls between being given a custodial sentence or a form of community service order. This case is not to be regarded as the normal case of offences of this nature. This is an exceptional case where the Appellant owned the shop and the infringing discs were only as small part of the shop. The Appellant had also closed down her shop as result of this case and it is unlikely that she would re-offend and taking into account the glowing Probation Officers report and the age of the Appellant, who had up to now let an unblemished life. I am therefore going to take an exceptional course and order that the Appellant serve a Community Service of 180 hours. I understand from counsel for the Appellant, Mr Davies, that he had explained to the Appellant what it means to be given a Community Service Order. I can say here that the Appellant has to work as directed by the relevant department and perform her hours of work. According to the Community Service Report, the number of hours available to the Appellant in a week to perform unpaid work is 8 hours a week. So it directed she would have to conform to that direction. If the Appellant does not understand any other detail, I am sure Mr Davies will explain to the Appellant, so, in the circumstances, the appeal against sentence is therefore allowed, the sentence that was originally given to the Appellant by the learned Magistrate is therefore set aside and the Appellant is sentenced to a Community Service Order of 180 hours of unpaid work.

Representation:

Mr Joseph Wong, SGC, of Department of Justice, for the Respondent

Mr Oliver Davies, instructed by Messrs Paul Chan & Co., for the 2nd Appellant