HKSAR v. Fermin Arlyine Ganzon

HCMA 493/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 493 OF 2005

(ON APPEAL FROM ESCC 1915 OF 2005)

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BETWEEN

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Before : The Honourable Mrs Justice V Bokhary in Court

Date of Hearing : 13 September 2005

Date of Judgment : 13 September 2005

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J U D G M E N T

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1.The Appellant is a woman of previous good character in her early thirties.  She pleaded guilty before ISC Candy, Esq. in the Magistrate’s court at Eastern to seven charges of theft.  The Magistrate sentenced her to a total of eight months’ imprisonment by taking a starting point of twelve months’ imprisonment on each charge, giving a one-third discount and making all the sentences concurrent.  She now appeals against sentence. 

2.Charge 1 was for theft of a friend’s bank card.  On the day following the theft of that card, the Appellant used it six times: twice to withdraw cash and four times to make purchases. Charges 2 to 7 were based on those withdrawals and purchases.  Rounding it down to the nearest hundred, the withdrawals and purchases came to a total of HK$25,400.00. 

3.Two Perfected Grounds of Appeal had been filed on the Appellant’s behalf. Ground one reads:

“The starting point of 12 months adopted by the learned Magistrate was manifestly excessive given the amount of money involved and the fact that the Appellant had a clear record at the time of sentence.”

In my view, the starting point of twelve months’ imprisonment taken by the Magistrate is justified in all the circumstances.

4.Ground two reads :

“Additional discount and credit should be given to the Appellant to reflect the fact that full restitution has been made to the victim on the 10^th May 2005, four days after the Appellant was sentenced.”

Since restitution by offenders to victims is always to be encouraged and the sentencing process continues into the appellate stage, an appellate court can properly reduce a sentence for restitution made after sentence has been passed at first instance.

5.Without any criticism of what the Magistrate did in the circumstances as they existed when he was passing sentences, I will reduce this sentence for the restitution made thereafter. 

6.Each concurrent sentence is reduced by two months so that the total sentence is reduced by two months from eight months’ imprisonment to six months’ imprisonment.

7.The appeal is allowed to that extent.

Miss Monica Chow, instructed by Messrs Brian Kong & Co (assigned by Director of Legal Aid), for the Appellant

Mr Eddie Sean, SGC of Department of Justice, for the Respondent