HKSAR v. Chu Wai Hung

HCMA808/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.808 OF 2005

(ON APPEAL FROM TMCC 1893, 1827 AND 1801 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 12 October 2005

Date of Judgment : 12 October 2005

Date of Reasons for Judgment : 9 November 2005

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted on his own plea to three charges of ‘Theft’ contrary to section 9 of the Theft Ordinance, Cap. 210.  He was sentenced to the consecutive terms of 1 month, 3 months and 4 months making a total of 8 months’ imprisonment.  He now appeals against the sentence.

2.The following were the admitted facts as per the magistrate’s Reasons for Sentence :

“TMC1801/2005

The plainclothes security staff of a Wellcome Supermarket in Tin Shui Wai had in the morning of 11^th June 2005 seen the defendant taking a bottle of shampoo valued at HK$ 89.90 from display staff, cover it under his T-shirt and then leave the supermarket without paying.

TMC1827/2005

The plainclothes security staff of a Wellcome Supermarket in Tuen Mun had in the afternoon of 14^th June 2005 seen the defendant take 4 mosquito patch packets and 2 bottles of mosquito repellent spray from the display rack, hide them underneath his waist and leave the supermarket without payment.

TMC1893/2005

On this occasion 2 police officers had on 24^th June 2005 seen the defendant leaving a Park N’ Shop Supermarket in Tin Shui Wai with a golden colour bag without going through the cashier exit.  The defendant had been intercepted and been found in possession of 18 bottles of honey valued at HK$ 700 odd which he had stolen from the shop and which he told the police he was going to sell.”

3.In the same document, the magistrate observed that :

“	5.	The defendant admitted 13 previous convictions primarily drug related but a number dishonesty related (his criminal record refers).
	6.	The DATC report which I obtained showed the defendant was a drug dependant and suitable for a DATC order.  I was asked by the Duty Lawyer representing the defendant to impose a prison sentence in lieu of a DATC order.
	7.	In sentencing the defendant I noted that he had been sentenced to DATC on no less than 4 occasions the last 2 of which were in 2003 and 2004.  Given that I saw little to be gained by imposing a further DATC order as clearly the drug withdrawal programme offered by the centre had been ineffective in the defendant’s case.  In those circumstances prison terms were appropriate on all 3 files.  There was an aggravating features so far as TMC 1827 & 1893/2005 were concerned in that the defendant had committed these 2 offences whilst on bail.
	8.	I gave the defendant the customary 1/3 discount for his pleas in each case resulting in prisons terms of 1 month (TMC 1801/2005), 3 months (TMC 1827/2005) and 4 months imprisonment (TMC 1893/2005).  I considered totality before ordering all 3 prison terms to run consecutive to each other making an 8 months sentence in total.  I so sentenced.”

4.Before me, the appellant complains that the magistrate had failed to give him the customary discount for pleading guilty.

5.When pointed out that that was not true, he asks me to increase his sentence by two months so that upon its expiry, he will not have to return to the DATC to serve out an order that he had imposed on him for yet another matter.

6.This request is horrendous.  The sentences in this case are irreproachable and will stay as they are.

7.This appeal is without merit.  It is dismissed.

Ms Ho May Yu Lily, SGC of Department of Justice, for HKSAR

Appellant in person