HKSAR v. Wong Kang Pui

HCMA000626/2004

HCMA 626/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 626 OF 2004

(ON APPEAL FROM KCCC 6383/2004)

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Coram: Hon Beeson J in Court

Date of Hearing: 24 August 2004

Date of Judgment: 24 August 2004

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J U D G M E N T

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1.The Appellant pleaded guilty and was convicted on 11 May 2004 of one count of theft and sentenced to 6 months imprisonment.

2.He was represented by the Duty Lawyer at trial. On 25 May 2004, he appeared in person before the Magistrate on a review of the sentence. The Magistrate affirmed the sentence of 6 months' imprisonment. He appealed against conviction and sentence.

3.The Appellant appeared for this appeal in person, Legal Aid having been refused. The Appellant insisted on appealing his conviction, despite having entered what was clearly an unequivocal plea of guilty. Accordingly his appeal against his conviction is dismissed.

4.In respect of his appeal against sentence, the Appellant has placed two letters before the Court, one dated 23 July 2004 and the second 12 August 2004, which contain his grounds of appeal. Basically, in those letters, he contended that he was a scrap-collector not a thief. He claims he was treated unfairly by the Magistrate because what he did was to pick up found property, rather than stealing it. The facts which the Appellant admitted in Court showed that he was seen by police officers, who were patrolling in a vehicle, to climb over a fence into a construction site and cut something off with a saw inside the site. He then climbed back out carrying two pieces of electric cable, one 14 feet and one 9 feet in length. Investigation showed that the cable was cut off from a roll of electric cable placed inside the construction site.

5.Despite his admission in Court of those facts, the Appellant submitted on appeal that he merely found the cable on the ground and was mistaken by the police for a thief. A further ground of appeal was that the trial judge was wrong when sentencing in that he failed to refer to similar cases in the past and the sentence of 6 months was excessive.

6.The Appellant agreed and relied on the content of both letters and supplemented the letters with further complaints that he was dealt with unfairly by the Magistrate and that he had not intended to plead guilty because he only found the property. He claimed he pleaded guilty only to please the Magistrate.

7.The Magistrate in passing the sentence referred to the Appellant's "formidable" record, which comprised sixty-two previous court appearances, some of which involved multiple offences. Nineteen offences were of theft, and six of those nineteen offences were committed in the last five years. Although the Magistrate did not sentence again for the previous offences, he considered the present case was aggravated by the previous convictions and noted that the Appellant had not been deterred by shorter sentences. It is correct when one peruses the record that the maximum sentence passed previously appears to be four months. The Appellant's real grievance is that he is now serving a sentence of 6 months.

8.The Magistrate had taken a 9 months' starting point for the offence and reduced it to 6 months for the plea of guilty.

9.Having considered the circumstances of the offence, the Appellant's past history, as well as what he set out in his letters and the oral submissions he made on appeal, I am satisfied that the Magistrate's sentence is entirely proper. This appeal against the sentence is dismissed.

Representation:

Mr David Leung, SGC, of Department of Justice for Respondent

Wong Kang Pui, Appellant in person