HKSAR v. Wong Yung Kit

HCMA980/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 980 OF 2005

(ON APPEAL FROM KCCC 5749 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 7 December 2005

Date of Judgment : 15 December 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 eight months’ imprisonment. 

2.The facts of the case were that the appellant and his girlfriend were guests at a karaoke club.  Inside the premises were a set of lockers for staff to use.  Personal belongings of staff members, such as jackets and handbags had been left hanging from those lockers.  The appellant stole from the locker area a leather jacket and a leather bag.  As he and his girlfriend were leaving the karaoke club they were apprehended by the club staff.  The appellant and his girlfriend were found in possession of the stolen items.  The appellant personally was in possession of a bank passbook which he had apparently removed from one of the other stolen items.  

3.The appellant was placed on court bail pending his trial for this offence.  Whilst on bail he committed other offences of theft and was sentenced to a totality of four months’ imprisonment for those offences prior to being sentenced in the present case. 

4.The magistrate, in sentencing the appellant for the present offence, adopted a starting point of 12 months’ imprisonment.  That was reduced to eight months’ imprisonment on the basis of the appellant’s plea of guilty.  Six months of that sentence were ordered to run consecutively to the four months’ imprisonment imposed in respect of the offences the appellant had committed whilst on bail.  That made a totality of sentence in respect of these offences of 10 months’ imprisonment.  

5.Mr Kevin Chan, for the appellant, puts forward one ground of appeal.  He says that the 12-month starting point adopted by the magistrate in respect of the present offence was manifestly excessive.  Mr Chan argues that the starting point was appropriate for offences such as pickpocketing, but that the present offence should not be categorized in that way as it was a simple offence of theft. 

6.Mr Chan relied on a number of cases, most of which involved theft of mobile phones.  I do not think those cases are of particular assistance on the facts.  The present case is a simple offence of theft and, in my view, general sentencing principles apply to it. 

7.The magistrate, in his Reasons for Sentence, said this :

“The defendant has 4 previous convictions, three similar.  I was told in mitigation that he is 25 and cohabited with his girlfriend at the time of the offence but they have now parted company.  He is a delivery worker earning 6500 per month.  He committed the offence to please his girlfriend.  His father has now had a stroke. 

It was clear that having stolen the property of the Karaoke staff, the defendant and his girlfriend had obviously sifted through the property to see what was worth keeping.  Some items had been abandoned and the bank book and other items kept.

The defendant has previously convictions for dishonesty and I took a starting point of 12 months for the offence which I reduced by one third to reflect the guilty plea. ….”

8.Whilst the magistrate does not expressly say so, it appears that in arriving at his starting point of 12 months’ imprisonment, he took into account the appellant’s previous convictions for dishonesty. 

9.The property stolen by the appellant was worth approximately $100.  I appreciate that the appellant’s retention particularly of the bank passbook which was discovered upon him when he was apprehended gives rise to some suspicions as to what his future intentions in that regard were.  But nevertheless, I do not believe, even given that factor and his previous convictions, that the starting point of 12 months for this offence was warranted.  

10.In my view, an appropriate starting point of sentence on the simple facts of the offence would have been six months’ imprisonment.  The starting point in fact taken by the magistrate represents a 100% enhancement.  Even given the appellant’s previous convictions for like offences, in my view, that level of enhancement is too much and a starting point of nine months’ imprisonment properly takes into account the aggravating factor of the appellant’s previous history of property offences.  Taking into account the appellant’s plea of guilty, the appropriate sentence for the offence would be six months’ imprisonment.

11.The magistrate ordered that the sentence he imposed should be only partly consecutive to the other sentences of theft committed by the appellant whilst on bail.  But I see no reason to depart from the general principle that sentences for offences committed whilst on bail should be served wholly consecutively to any sentence imposed for the original offence.

12.Accordingly, I order that the sentence of eight months’ imprisonment imposed by the magistrate be reduced to a sentence of six months’ imprisonment and that it be served consecutively to the sentence of four months’ imprisonment the appellant is presently serving.  That results in the same totality of ten months’ imprisonment arrived at by the magistrate. 

Mr Isaac Tam, SGC of the Department of Justice, for HKSAR

Mr Kevin Chan, assigned by the Director of Legal Aid, for the Appellant