HKSAR v. Chan Kowk Wai

HCMA 341/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.341 OF 2005

(ON APPEAL FROM TMC 619/2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 1.6.2005

Date of Judgment: 1.6.2005

Date of handing down Judgment: 2.6.2005

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J U D G M E N T

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Background

1.The Appellant pleaded guilty to an offence of theft (pickpocketing) (1^st charge) and one of Resisting a Police Officer in execution of his duty (2^nd charge). He was sentenced by Mr. Colin Mackintosh to a total term of imprisonment of 18 months. He appealed against sentence.

2.As the Appellant is Chinese I conducted the appeal in Cantonese.

3.After hearing the submissions I dismissed the appeal. I gave my reasons at the time and I now reduce them in writing, with an elaboration on the background.

Admitted facts

4.The admitted facts disclosed that the Appellant approached a woman from behind and removed a phone from her bag. He was observed by an off-duty police officer. The officer intercepted the Appellant, revealed his police identity and declared arrest on the Appellant. The Appellant put up a struggle despite warnings and managed to run away. The officer gave chase and caught up with the Appellant, who again put up a struggle and managed to escape yet again. Finally the Appellant was caught and subdued.

Grounds of Appeal

5.The Appellant’s ground of appeal was that the sentence was too high. To support this ground he mentioned the sentences imposed on two fellow prisoners: both were repeated offenders convicted of theft. The Appellant claimed that since one was sentenced to 10 months (on a plea of guilty) and the other 15 (after conviction), his sentence of 18 months was manifestly excessive.

Reasons for Sentence

6.The learned magistrate gave detailed reasons why he imposed the 18 months on the Appellant. In gist, the learned magistrate paid heed to the authority of HKSAR v Ngo Van Huy, CACC 107/2004 and enhanced the sentence to reflect the Appellant’s 6 previous similar convictions (among other convictions). The learned magistrate took a starting point of 21 months for the pickpocketing offence. He gave the Appellant the usual 1/3 discount and imposed a term of 14 months imprisonment.

7.As the Appellant’s previous convictions also included two for assaulting /resisting police officers, and the resistance in the present case was violent and determined, the learned magistrate took a starting point of 6 months. After a reduction of 1/3 the learned magistrate imposed 4 months of the offence of resisting a police officer.

8.Having considered the totality principles the learned magistrate was satisfied a total sentence of 18 months was proper in all circumstances.

Judgment

9.The fact that the Appellant’s fellow prisoners were sentenced to a shorter term of imprisonment (if the Appellant’s assertion was indeed correct) is not, by itself, a ground of appeal.

10.I do not know under what circumstances those two prisoners were sentenced. Nor do I know what mitigating circumstances have been advanced. Those two prisoners were not “co-accused” of the Appellant. They were not sentenced on the same occasion. One was sentenced by a magistrate in Eastern magistracy and the other by a magistrate in Tuen Mun. 

11.This is certainly not a case in which the Appellant was sentenced with other co-accused by the same magistrate on the same occasion. The only consideration here is whether the sentence passed on the Appellant is proper: see R v Lam Mo Kwong Cr. App. 175/1992 and Sentencing in Hong Kong, 4^th Ed. Page 180.

12.Having read the reasons for sentence I fully agree with the approach adopted by the learned magistrate. The sentences imposed were not manifestly excessive. For these reasons I dismissed the appeal.

Mr. POON Chin Ping, Jackson, Senior Government Counsel for the Respondent

Appellant CHAN Kwok-wai acting in person