HKSAR v. Limbu Hukum Sing

HCMA93/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 93 OF 2008

(ON APPEAL FROM TMCC 3988 OF 2007)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 7 May 2008

Date of Judgment : 7 May 2008

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J U D G M E N T

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1.The appellant was convicted after a trial before Mr Douglas Kwok Deputy Magistrate of one count of going equipped for stealing contrary to section 27(1) of the Theft Ordinance, Cap. 210.  

2.He was sentenced to be imprisoned for 12 months.  He now appeals that sentence. 

3.The particulars of the charge alleged that the appellant was, on 28 October 2007, near “Wing Yau Tong Construction Site”, Ching Chung Sin Yuan, Tuen Mun, New Territories in Hong Kong, not being at his place of abode did have with him an article for use in a burglary, namely, one piece of saw blade, 30 cm in length, with a blade cover made of foam paper. 

4.The facts can be taken from the Deputy Magistrate’s Reasons for Sentence : 

“3.   The material facts in the case were that in the early hours of 28^th October 2007, the Appellant was found to be in possession of a 30 cm long saw blade with foam cover in the vicinity of a construction site in Ching Chung Sin Yuan, Tsing San Path. Police officers testified in court, whose evidence I fully accepted, revealing that inside the construction site there was a section of a copper pipe that had been cut at one end (as shown in photos 1-3 of P2) with a saw-like object.  I accepted that the Appellant possessed the saw blade for use in connection with burglary inside the construction site.”

5.The appellant is 29 years of age and was at the time of sentence working at a cargo handling depot.  When this sentence was imposed he had four previous convictions (three for theft and one of going equipped for stealing). 

6.On 14 August 2007 he had been sentenced to be imprisoned for two months for the offence of theft.  As it transpires the present offence was committed shortly after his release from serving that term of imprisonment. 

7.On 18 December 2006, the appellant was sentenced to two months’ imprisonment for the offence of theft.  On 20 July 2006, the appellant was sentenced to two months’ imprisonment for the offence of theft.  On that occasion was sentenced to a term of one month’s imprisonment for going equipped for stealing.  

8.In the course of the hearing today it has become apparent that all of the appellant’s offences for theft and going equipped for stealing are in the main part concerned with the theft of copper pipe and copper wire. 

9.The Deputy Magistrate, when sentencing the appellant, considered that the appropriate sentence for this type of offence would range between six and nine months.  That may be the case but the Court of Appeal has on occasions upheld terms of imprisonment considerably longer than that. 

10.In the present case the Deputy Magistrate adopted a starting point of nine months after trial.  This he enhanced to a term of 12 months because the appellant had committed this offence shortly after his release from his last term of imprisonment.  

11.The Court of Appeal when establishing guidelines for sentencing for the offence of theft (pickpocket) in HKSAR v. Ngo Van Huy [2005] 2 HKLRD 81 said inter alia that where there were repeat offences of the same kind, the defendant’s previous record was likely to be an aggravating factor.  In particular this may demonstrate :

(i)      the need to impose a deterrent sentence, given that the previous ones have not apparently had this effect, or

(ii)      the need to protect society from criminals like him.

12.Those observations are entirely applicable to circumstances of this appellant.  It is clear from his previous criminal record and what I have learnt as to the nature of those offences that this appellant has not for one moment been deterred by the previous sentences imposed.  A regular pattern emerges of being convicted and sentenced for theft of copper wire and upon being released immediately or shortly after that returning to the same course of conduct.  The sentence imposed by the magistrate was in all the circumstances entirely appropriate.  It is neither the manifestly excessive or wrong in principle and this appeal is dismissed. 

Mr Vincent Wong, SGC of Department of Justice, for the Respondent

Appellant in person, present