HKSAR v. Wong Yiu Man

HCMA1155/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1155 OF 2006

(ON APPEAL FROM TWCC 2795 OF 2006)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 7 February 2007

Date of Judgment : 6 March 2007

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J U D G M E N T

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1.On 9 November 2006, the appellant pleaded guilty before Mr Lambert Lee, sitting at Tsuen Wan Magistrates’ Court, to one charge of theft and three charges of obtaining property by deception.

2.The facts of the case are that the appellant, who was at the material time a school teacher, stole from a fellow teacher a credit card belonging to the latter.  On the same day, the appellant went to three different shops (all situated in the same commercial complex) and at each shop, by dishonestly pretending that he was the holder of the credit card, obtained from the shops four mobile telephone.  The total value of the mobile phones was $11,712.

3.Mr Lee sentenced the appellant to nine months on each charge but ordered that four months of Charges 2, 3 and 4 (the deception charges) should be served consecutively to the nine months on Charge 1 (the theft charge), making a total of 21 months’ imprisonment.

4.The appellant was aged 38 years old.  He was single.  He was a graduate of the Hong Kong University and the Chinese University.  He had a clear record.  He had made full restitution of the total amount stolen from the three shops. 

5.Mr Wong, appearing for the appellant, accepted that the sentence on Charge 1 could properly be made consecutive to the sentences on Charges 2 to 4. 

6.Miss Fung, appearing for the respondent, properly pointed out that of the previous cases quoted by Mr Wong in the majority of those cases, the theft count was consecutive to the deception counts but the deception counts were all ordered to be served concurrently with one another.

7.Mr Lee had taken full account of the fact that full restitution was made and consequently had reduced the sentence of 12 months to nine months’ imprisonment.  12 months was the discounted sentence taking into account the pleas of guilty on a starting point of 18 months’ imprisonment.

8.I take the view that because the 2^nd to the 4^th counts were all committed on the same day in shops all within the same commercial complex, these sentences can properly be ordered to be served concurrently.  The four months of the deception charges ordered to be served consecutively to the nine months on the 1^st Charge is a proper order and, consequently, I allow the appeal to the extent that the sentence imposed by the learned magistrate is reduced from 21 months to 13 months, that being made up of nine months on the 1^st Charge and four months of the 2^nd Charge being served consecutively to the sentence on the 1^st Charge.  The sentences on the 3^rd and 4^th Charges are to be served concurrently with all other sentences.

9.The appeal is allowed to that extent.

Ms Mickey Fung, GC of Department of Justice, for HKSAR

Mr Peter Wong Tin Kwong, instructed by Messrs Tai Tang & Chong, for the Appellant