HKSAR v. Huang Xu

HCMA534/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.534 OF 2006

(On Appeal From KCCC 2726 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 27 July 2006

Date of Judgment : 27 July 2006

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J U D G M E N T

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1.The appellant pleaded guilty to one charge of theft and one charge of going equipped for stealing.  He was sentenced to 8 months and 6 months’ imprisonment respectively and it was ordered that 3 months out of the second sentence to run consecutively, making a total of 11 months’ imprisonment.  He now appeals his sentence.

2.According to the facts of the case, at 20:35 hours on 2 May 2006, the appellant was spotted acting suspiciously on Nathan Road near the junction.  He paid particular attention to pockets and handbags of passers-by.  He was observed by police officers to have taken out a silver object from his bag and held it out towards the handbag of a lady who was waiting to cross the road.  When she started to cross at the change of traffic lights, the appellant was seen to put back the silver object into his bag.

3.After he was intercepted by police officers, a pair of metal clippers 25 cm in length and a mobile phone, the subject of the theft charge, were found inside his bag.

4.The owner of the phone was located.  She had the phone in the left side pocket of her school dress and lost it earlier on that afternoon in Mongkok, after somebody bumped into her.

Grounds of appeal

5.The appellant, in his handwritten home-made grounds, relied on the medical conditions of his father, which he said had deteriorated since his coming to Hong Kong, the pregnancy of his girlfriend, and other family conditions to ask this court to tamper his original sentence with mercy to enable his early release.

Respondent’s reply

6.The respondent referred to the case of R. v. Vy Van Kien [1991] 1 HKLR 422.  It was submitted that by adopting 12 months and 9 months as starting points for the 2 charges respectively, and ordering only 3 months out of the second sentence to run consecutively, the sentence was lenient and could not be said to be manifestly excessive.  Further there exists no humanitarian grounds to justify further reduction of the sentence.

My judgment

7.The magistrate had rightly pointed out in his Reasons for Sentence the following :

“I was satisfied he had been loitering in this very busy area of Mongkok with a view to pickpocketing.  He had equipped himself with the clippers for that purpose and had successfully pickpocketed the mobile phone of the school girl.  Thefts of mobile phones are rife in Hong Kong and particularly in this area.”

8.The Court of Appeal in HKSAR v. Ngo Van Huy [2005] 2 HKLRD 1 affirmed the guideline laid down in Vy Van Kien’s case.

9.Family condition as stated by the appellant does not constitute humanitarian grounds especially when an appellant was already aware of illness or medical condition of a close relative but nonetheless chose to come to Hong Kong, allegedly for quick money to help out with medical expenses.

10.In the case of HKSAR v. Guo Jingxing, HCMA15/2006, the appellant relied on his mother’s alleged deteriorating medical condition as humanitarian grounds and asked for a further discount.  Deputy Judge Longley rejected this as humanitarian grounds and said :

“The applicant was aware that his mother had already suffered one stroke before he entered Hong Kong on this occasion, with a view yet again to breach the laws of Hong Kong.  He chose to take the risk that her health might decline.”

11.The sentences passed in this case were within the tariff and the magistrate had considered totality in ordering 3 months out of the second sentence to run consecutively.  There exists no humanitarian grounds in this case.  The sentences could only be described as lenient and are by no means manifestly excessive.

12.This appeal against sentence is dismissed and I affirm the sentences.

Ms Rosaline S.Y. Leung, SGC of the Department of Justice, for HKSAR

Appellant in person