HKSAR v. Kong Ching Ha Priscilla

HCMA 941/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 941 OF 2005

(ON APPEAL FROM KCCC NO. 2960 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge B Fung in Court

Date of Hearing: 9 December 2005

Date of Judgment: 9 December 2005

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J U D G M E N T

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1.The Appellant Kong Ching-ha Priscilla was charged with 3 charges of theft of a mobile phone in each case (charges 1 to 3).  She was tried before a Magistrate and was convicted of charges 1 and 3 and acquitted of charge 2.  She was sentenced to 12 months’ imprisonment on each charge to be served concurrently.

2.The Appellant filed a notice of appeal against both conviction and sentence.  On hearing of the appeal today, the Appellant indicated that she is to abandon the appeal against conviction.  Hence, the hearing is only on sentence.

3.In both cases, the Appellant used the pretext of borrowing a mobile phone from a new found friend through the short message service or SMS system and left without returning.  In each case, they planned to meet in the cinema.  The Appellant used the pretext that her own mobile phone had run out of battery and asked to use the victim’s mobile phone outside the cinema.  She left behind a bag in the cinema to make believe that she would be returning shortly.  When she eventually did not return, the victims found that the bags contained nothing but useless items.

4.In charge 1, the matter went further.  The Appellant made an appointment with the victim for the return of the mobile phone.  She demanded the payment of $2,800 before returning the phone.  The victim used the pretext of going to the cash machine and reported the matter to the police.  The Appellant was arrested.  The phone related to the other convicted charge was found in the possession of the Appellant upon search.

5.The Magistrate took into account the following matters in imposing the sentence.  He said she is of clear record.  The offences were serious.  The Appellant had planned the offences.  She was manipulative and calculating luring the respective victims to the cinema to relieve them of the mobile phone.  She went on to make extortion in charge 1.

6.The Appellant is unrepresented before me.  In the grounds of appeal filed by herself, she said there was no breach of trust in the two cases.

Consideration

7.In HKSAR v. Chou Mao Wen, HCMA 1112/2002 (7 March 2003), Beeson J said that lulling the victim into a false sense of friendship is not a breach of trust for the purpose of sentencing.  In that case, the Appellant tricked a visitor at the airport into lending him $2,500.  He said he needed the money for the price of an air ticket and the airport departure tax.  Upon arrival in Taiwan, his wife would meet him at the airport and he could then repay the victim.  He asked the victim not to use the credit card because otherwise the purchase price would be without cash discount.  Originally he was sentenced to 15 months’ imprisonment. In the consideration of the sentence, it was taken into account prevalence in the locality where the Magistrate was sitting. Upon Appeal, the sentence was reduced to 12 months’ imprisonment. 

8.In another case HKSAR v Lee Cheuk Fai, HCMA 1238/2002 (18 March 2003), the Appellant was convicted of one charge of theft of the mobile phone.  He borrowed the phone from the victim.  He only returned the SIM card.  His excuse was that he had on-lent the phone to another friend and he only managed to get the SIM card back.  He was sentenced to 6 months’ imprisonment upon conviction.  On appeal, Deputy Judge Barnes held that 4 months was the appropriate starting point, but it was enhanced to 5 months for the Appellant was a persistent offender.

9.In this case, I do agree with the Magistrate that there was certain degree of planning and manipulation in both cases.  In the first case, there was also the added element of extortion.  I consider that the sentence of 9 months’ imprisonment is appropriate for charge 1.  The second case, which was actually the first in time, was less serious and I consider the sentence of 6 months’ imprisonment is appropriate.

10.There are two offences and totality must be considered.  I consider that the totality of the two cases should be 12 months.  Hence, I shall make the following order: charge 1, the Appellant be sentenced to 9 months’ imprisonment; and charge 3, 6 months’ imprisonment, 3 months to be served concurrently and 3 months consecutive to charge 1, making a total of 12 months’ imprisonment.

Ms Alice Chan, Senior Government Counsel, for the Respondent

Appellant in person