HKSAR v. Kong Chi-fai

HCMA450/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.450 OF 2009

(ON APPEAL FROM KTCC NO.2607 OF 2009)

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BETWEEN

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Before: Deputy High Court Judge Geiser

Dates of Hearing:  8 July 2009

Date of Judgment:  8 July 2009

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J U D G M E N T

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1.The appellant pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, Laws of Hong Kong, on 2 May of this year, and was sentenced to a total of 8 months’ imprisonment by a magistrate sitting at Kwun Tong Magistracy.

2.The facts which the appellant agreed in the court below indicate that at about 5.30 pm on 30 April of this year an employee of the 7-Eleven store in question saw the appellant take a packet of soft drink from the fridge and hid it in the waistband at the back of his trousers. He left the store without paying for it. The employee of the store chased the appellant, caught up with him and confronted him. The appellant denied having taken anything, kept on fleeing, and then discarded the soft drink packet. He was eventually stopped.

3.The Notice of Appeal, filed on 11 May of this year by the appellant, contains the general grounds that his sentence was too severe. In support of his application, the appellant has told me this morning that he pleaded guilty at the first opportunity, but despite this the magistrate imposed an unreasonably high starting point.

4.In his reasons for sentence the learned magistrate was alive to the fact that the case involved shop theft, and the stolen property which was recovered was worth only $5.90. However, he also said this:

“I also consider that the defendant is already aged 32 and he is not young. The defendant has got multiple conviction records. The earliest one was in 1988. The most recent one was in 2008. Save that in the year 1999 the defendant did not have a conviction record, during the period in each year he had at least one conviction record. Of these conviction records 17 of them are for theft. The defendant had been sentenced with fines to the DATC and imprisonment, the longest term being 10 months. The defendant is indeed a recidivist.”

5.The description by the magistrate of the appellant being a recidivist is one with which I wholeheartedly agree. The appellant has a quite appalling record for theft and has been sent either to prison or DATC for this sort of offence on no less than 15 occasions.

6.The learned magistrate was not sentencing the appellant on the basis of previous offences for which he had already been punished, but was following established sentencing guidelines by taking account of the constant repetition of theft which itself increases the gravity of the offence and is a major aggravating feature. The starting point of 12 months’ imprisonment adopted by the learned magistrate in the present appeal cannot, in the particular circumstances of this case, be said to be too severe.

7.I dismiss the appeal against sentence and confirm the sentence of 8 months’ imprisonment.

Ms Margaret K W Yu, PP of the Department of Justice, for the Respondent

Appellant, Kong Chi-fai, in person