HKSAR v. Lei Chun Fai

HCMA1176 & 1183/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.1176 and 1183 OF 2004

(ON APPEAL FROM TWCC 2628 AND 3068 OF 2004)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 30 December 2004

Date of Judgment : 30 December 2004

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J U D G M E N T

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Introduction

1.On 12 November 2004, the appellant was convicted after trial by Mr John Glass of a single charge of theft on 10 August 2004, contrary to section 9 of the Theft Ordinance, Cap.210 (the “first charge”).  The Particulars of Offence stated that the property stolen was an intercom speaker installed at the counter of the general office the of the x-ray department on the second floor of Yan Chai Hospital in Tsuen Wan.  The magistrate imposed a sentence of six months’ imprisonment.

2.Following his conviction for that offence the appellant pleaded guilty to a second charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210 (the “second charge”).  The Particulars of Offence stated that on 8 October 2004 the appellant had stolen a bottle of “San Miguel” beer from a “7-Eleven” convenience store in Wai Tsuen Road, Tsuen Wan.  The magistrate imposed a sentence of two months’ imprisonment.  Having regard to the fact that the offence was committed whilst the appellant was on bail awaiting trial on the first charge, he ordered it to be served consecutively to the sentence imposed in respect of the first charge.  Accordingly, in total, the appellant was ordered to serve a term of eight months’ imprisonment.

Grounds of appeal against sentence

3.The appellant appears in this court in person and advances self-drafted grounds of appeal in respect of the sentence imposed by the magistrate on each of the charges.  Both grounds are drafted in identical terms, namely “that my sentence was too severe”.

Reasons for sentence

4.The magistrate noted that the appellant was 36 years of age and unemployed in consequence of having had his leg amputated in July 2004.  As a result, he lived on a disability allowance.  Although the magistrate does not state so in terms it appears he accepted the submission made in mitigation on behalf of the appellant that the commission of the offence was not premeditated.  Nevertheless, in respect of the sentence of six months’ imprisonment imposed in respect of the first charge the magistrate stated that he took a starting point of six months’ imprisonment.  He said that he did so because he took the view that stealing an intercom from a public hospital was a serious offence.  Also, he took note of the fact that the appellant had a very lengthy criminal record, including convictions for offences of dishonesty and that he had been sentenced to a term of two months’ imprisonment for theft in 2003.  Having determined that there were no mitigating factors the magistrate imposed a sentence of six months’ imprisonment on the first charge.

5.In respect of the second charge the magistrate noted that although the value of the bottle of beer, $7.20, was low the offence had been committed whilst the appellant was on bail in respect of the offence alleged by the first charge.  The magistrate noted again that the appellant had multiple convictions recorded against him, some of which related to dishonesty.  He took a starting point of three months’ imprisonment, which he discounted by one month to reflect the mitigating factor of the appellant’s plea of guilty to the second charge.  In the result, he imposed a sentence of two months’ imprisonment.  Noting that the two offences were “entirely separate and distinct” the magistrate ordered that the sentence imposed in respect of the second charge be served consecutively to that imposed in respect of the first charge.  Of the fact that the total sentence imposed thereby was eight months’ imprisonment the magistrate stated that he judged that total sentence of imprisonment to be appropriate in the circumstances.

Respondent’s submissions

6.In his written submissions on behalf of the respondent Mr Vincent Wong submits that the view taken of the offences by the magistrate as to seriousness, aggravation and totality are entirely justified and correct.

Conclusion

7.It is clear from a perusal of the lengthy criminal record of the appellant that he has kept both the police and the courts busy over the last 22 years accumulating, by now, a total of 30 convictions.  The offences involved cover a wide range of criminality : dishonesty; gambling; offences relating to dangerous drugs; false accounting; blackmail; criminal damage and dealing unlawfully with goods subject to the Dutiable Commodities Ordinance.  Over the period of the last two years the appellant has been dealt with in the Magistracy on no less than nine occasions.  On each occasion he was sentenced to a term of imprisonment.

8.In my judgment the magistrate was entirely justified in the conclusions that he reached as to the appropriate level of sentence to be imposed in respect of each charge and in respect of the overall totality of sentence.  In reaching the determinations that he did the magistrate was entitled to have regard to the contempt with which the appellant treats sentences imposed by the courts, best evidenced by the appellant’s appalling criminal record.

9.Accordingly, the appellant’s appeals against the sentences imposed in respect of each of the charges are dismissed.

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

Appellant in person