HKSAR v. Wong Wai Man

HCMA 615/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 615 OF 2006

(ON APPEAL FROM KTCC 3572 OF 2006)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 22 August 2006

Date of Judgment: 22 August 2006

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J U D G M E N T

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1.The Appellant is a man of previous good character in his mid-40s.  He appeals against a sentence of 6 months’ imprisonment passed on him on 9 June 2006 by G Tallentire, Esquire in the Magistrate’s Court at Kwun Tong for an offence of theft to which he had pleaded guilty.  The brief facts which the prosecution put before the Magistrate and were admitted by the Appellant read as follows:

“On 9 May 2006, PW1 and PW2 held an anti-theft operation (in plainclothes) at the campus of the university.  After observation, PW1 spotted the Defendant acting suspiciously and followed.  At the above date and time, PW1 and PW2 found the Defendant at the above location coming out from one of the cubicles.  PW1 and PW2 identified their police identities and conducted a search on the Defendant.  As a result, one mobile phone, a green coloured wallet and one pizza hut card (Exhibits 1-3) were found on the Defendant.  Thus, PW1 arrested the Defendant for the above offence and PW2 seized Exhibits 1-3 as exhibits.  Under caution, the Defendant said he understood and explained that he was in debt amounting to some 200,000 dollars.  So he went to City University to steal and had nothing to say for catching him.

The Defendant was then taken to Sham Shui Po Police Station for processing.  PW2 took a caution statement from the Defendant (Exhibit 4).  Police enquiries conducted but could not identify owner(s) of Exhibits 1-3.

Subsequently, the Defendant was formally charged for the offence. ”

2.The perfected grounds of appeal against sentence prepared by counsel for the Appellant read as follows:

“1. The learned Magistrate erred in categorizing the theft

(a) as an extremely serious case; and

(b) almost in the categorizing of a pick pocket, (page 14 of the appeal bundle).  Whilst there is no evidence suggested any of the above.

2. The learned Magistrate erred in holding that the commission of that theft was well executed (page 16 of the appeal bundle) in the absence of any support whatsoever from the primary facts; and

3. The learned Magistrate in treating execution as an aggravating factor (page 14 of the appeal bundle).

3.Those grounds are obviously based on the part of the Magistrate’s Reasons for Sentence where he said this:

“However this is an extremely serious case of theft, the aggravating feature being the premeditation and execution.  In my opinion, it was almost in the category of a pick pocket.”

4.It had been submitted to the Magistrate by the Duty Lawyer representing the Appellant that the offence had been committed out of momentary greed.  The Magistrate was right to reject that submission, but then went too far in treating the case as extremely serious.

5.Additionally, there is another point on which I invited and have heard argument from both sides.  It is this.  In addition to saying that he took the Appellant’s guilty plea into account in his favour, the Magistrate said the same thing about the Appellant’s clear record and what he i.e. the Magistrate called the Appellant’s “honesty and co-operation upon being intercepted by police officers”.  But when giving the Appellant a reduction from the starting point of 9 months’ imprisonment which he adopted, the Magistrate only gave the one-third discount common for a guilty plea even on its own.  Indeed the Magistrate said in terms that the reduction was: “for the plea of guilty”.

6.The Appellant’s previous good character was not confined to a clear record.  On his behalf, it was said to the Magistrate without challenge by the prosecution, that the Appellant was in employment and had to look after his aged parents.

7.I am persuaded that the sentence must be reduced.  Indeed, Mr Cheng for the Respondent quite properly conceded that the sentence should be reduced on the ground that the Magistrate had failed to give a discount for the Appellant’s clear record.

8.All things considered, I adopt a starting point of 7 months’ imprisonment and give a reduction of 3 months to reflect not only the guilty plea but also the Appellant’s previous good character and immediate co-operation with the police.

9.The appeal against sentences is allowed to reduce the Appellant’s sentence to 4 months’ imprisonment.

Mr Paul T Y Tse, instructed by Messrs Au, Thong & Tsang, for the Appellant

Mr Raymond Cheng, GC of the Department of Justice, for the Respondent