HKSAR v. Pun Yuk Bahadur

HCMA671/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.671 OF 2005

(ON APPEAL FROM KCCC 4316 OF 2005)

BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 29 September 2005

Date of Judgment : 29 September 2005

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J U D G M E N T

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1.The appellant was convicted on his own plea of one charge of ‘Theft’.  He was sentenced to 10 months’ imprisonment.  He now appeals against the sentence. 

2.The case upon which the appellant pleaded guilty was that he stole $420 cash from a man sleeping underneath the Ferry Street flyover.  He was seen doing that by police officers and was caught red-handed.

3.In his Reasons for Sentence, the magistrate said :

“3.    In mitigation, the court was told that the defendant was a married man, a cleaning worker earning a monthly income of $4,800, and had to support his wife and daughter in Nepal.  The defendant asked for a financial penalty.

4.    First of all, the facts of the case were serious in that the defendant took advantage of somebody being a vulnerable situation, i.e., being less able to guard against the loss of property while sleeping, and stole cash from the person.  What he did in fact amounted to pickpocket, I didn’t’ think that a financial penalty would be an appropriate sentence in the circumstances.

5.    In Pahalawatta (HCMA1133/1999), the appellate court pointed out that ‘………. in an ordinary case of pickpocket, 15 months or even more, would be the right starting point.’

6.    The defendant has a number of previous convictions, four of them were involved dishonesty.  Having considered all the mitigation, I took 15 months as starting point and reduced to 10 months for his plea, and there was nothing else which could justify a further reduction in the sentence, therefore the defendant was sentenced to 10 months imprisonment.”

4.Before me, the appellant complains that given all the circumstances of the case, the sentence is too severe.  He asks me to take into account the fact that he is his family’s sole bread-winner.

5.In Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal has, for the offence of pickpocketing, laid down the guideline line sentence of 12 to 15 months’ imprisonment after trial.  This is for first time offenders.  Where the accused is a repeat offender or, worse, a persistent one, a substantially higher sentence would be justified.

6.I agree with the magistrate that the present case is or is akin to one of pickpocketing.  I do however feel that its overall seriousness is at the bottom end of the scale.  Yet, given the appellant’s previous record, the final sentence of 10 months’ imprisonment is justified.  That is my judgment.

7.The appeal is dismissed.

Ms Cheung Kit Yee, Kathie, GC of Department of Justice, for HKSAR

The Appellant in person