HKSAR v. Lee Kwan Yeung

HCMA 365/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 365 OF 2005

(ON APPEAL FROM ESCC 1344/2005)

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BETWEEN

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Before: Deputy High Court Judge Carlson in Court

Date of Hearing: 30 June 2005

Date of Judgment: 30 June 2005

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J U D G M E N T

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1.On 1 June last year, Miss Wong Mei Ngor [PW1] went by car to the beach at Shek O village together with the Appellant and another man.  She was unwise enough to have with her a $38,000 Rolex wrist watch which she placed in the glove-compartment of the car when the three of them, who were friends, went for swim.  A little while later she returned to the car to fetch a towel and it was then that she discovered that her watch had gone missing.  It had gone missing because the Appellant had stolen it and disappeared.  He stole it and then he pawned in Wanchai the very same day for $17,000 but redeemed it the following day.

2.He was to tell the police following his arrest that he then took the watch to Macau and, this has been confirmed by the police, he then pawned again on 3 June 2004 for $26,000, which he spent.  The pawnbroker in Macau then sold the watch after the expiry of the requisite period during which the Appellant could have redeemed it.  The watch therefore has gone.

3.The Appellant then went to the Mainland and was not apprehended until he was detained at Lo Wu 6 months later, a warrant for his arrest having been issued.  Following his arrest, the Appellant made the admissions in the terms that I have just related.

4.On 31 March this year, he pleaded guilty before Mr Candy, at the Eastern Magistrates Court to a charge of having stolen the watch from PW1’s car and was sentenced to a term of 8 months’ imprisonment, against which he now appeals.  In his Reasons for Sentence, the learned Magistrate has explained that he adopted a 12-month starting point, and reduced that to one of 8 months to reflect the Appellant’s guilty plea.

5.The Appellant has an unattractive record involving 3 previous findings of guilt for dishonesty, when a juvenile, for to which on each occasion a probation order was imposed.  The last of those matters is dated June 1992, so 12 years before this matter and his most recent offence was 10 years before this one, not being an offence of dishonesty, for which he was sent to a detention centre.

6.He is now married to a woman on the Mainland, who has two sons, aged 12 and 7, from her previous marriage.  He was employed as a delivery worker earning $6,000 a month and I am told, as was the Magistrate, that his employer is willing to have him back.

7.In arguing this appeal, which she has done most attractively, Miss Lee submits that a sentence of 8 months after a plea is much too long.  In the course of his remarks when passing sentence the Magistrate commented that the offence was one involving a breach of trust.  Miss Lee, and in this regard she supported by Mr Cheng for the Respondent, submits that it was wrong of the Magistrate to describe the matter in these terms.  I am completely satisfied, having regard to all the circumstances of the case, that the Magistrate was correct to have described the matter in this way.  He was not of course referring to a breach of trust which arises from a relationship of an employer and employee or the multitude of other professional relationships which give rise to such a description, but to that bond of trust and confidence between friends and the advantages and responsibilities of friendship which we all value so much in our day-to-day lives.  What this most experienced Magistrate was saying was that this theft from a friend, in these circumstances, made this a rather mean offence.

8.This Appellant knew the watch was there and he took it.  I am entirely satisfied that the Magistrate was quite correct to have proceeded to sentence on what he saw as aggravating circumstances and then, this friend of the Appellant had disappeared, pawned the watch twice, eventually getting $26,000 and absented himself for 6 months until his arrest at the border.

9.There is, in my judgment, nothing in the point that this case did not involve a breach of trust.  The next point is that insufficient credit was given for the fact that the Appellant had stayed out of trouble for the past 10 years.  Miss Lee submits that additional credit should have been given.  It is right to observe that the Magistrate remarked when passing sentence that the Appellant’s last conviction was some 10 years ago and so he had the point in mind.  There is nothing in that submission in my judgment.  It had also been suggested below and repeated here but without having been pressed very strongly and, rightly so in my judgment that the Appellant stole the watch in order to pay for medical expenses for his wife.  As the Magistrate observed that could never excuse what was done.  It merely served to explain why he may have committed the offence.

10.Such circumstances even if they were true cannot provide any mitigation.  Whilst this was a severe sentence, the facts clearly called for such a course to be adopted for the reasons that the Magistrate gave at the time and in his more formal Reasons for Sentence.  It cannot be said that this sentence was either wrong in principle or that it was manifestly excessive.  This was a mean offence, deserving of the punishment imposed by the learned Magistrate.  The appeal must therefore stand dismissed.

Mr Raymond Cheng of Department of Justice for the Respondent

Ms Alice Lee, instructed by DLA, for the Appellant