HKSAR v. James Steven Pollard

HCMA 211/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 211 OF 2010

(ON APPEAL FROM KTCC 7713 OF 2009)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 2 June 2010

Date of Judgment: 2 June 2010

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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 early thirties. He pleaded guilty in the Magistrate’s Court before DJ Dufton, Esq. to two charges of obtaining services by deception, contrary to section 18A(1) of the Theft Ordinance, Cap. 210.

2.On each occasion, the services obtained consisted of hotel accommodation and the deception was that he was authorised to use a credit card in the name of a Mr Lam Wing-hang.  The first offence was committed on 23 September 2008, and the second offence was committed on the 30^th of that month.  The credit card had come into the Appellant’s possession by mistake.  He used it after realising that and knowing that it was wrong to do so.  The value of the services obtained on both occasions combined came to less than $3,000. 

3.The Magistrate sentenced him to a total of 6 months’ imprisonment.  That total was arrived at by taking a starting point of 9 months’ imprisonment on each charge, discounting each term by a third for the guilty plea to it and making the two terms concurrent. 

4.The Appellant now appeals against sentence.  The perfected grounds of appeal are that the sentence is wrong in principle and manifestly excessive because:

“(i)	The learned magistrate failed to consider properly the merits of imposing a Community Service Order.
(ii)	The learned magistrate erred in finding that the circumstances did not warrant suspension of the imprisonment term.
(iii)	The learned magistrate failed to consider fully or at all the likely adverse affect of an immediate term of imprisonment on the Appellant’s immigration status.
(iv)	Although the learned magistrate made the finding that “the offences (were) … at the lower end of the scale of credit card frauds” he failed to give full credit to the fact that the degree of criminality was extremely low.”

5.This morning an affirmation by the Appellant’s solicitor was produced without objection.  It deals with the good works which the Appellant has been doing.  I have taken it fully into account.

6.As to why the Magistrate did not deal with the Appellant by way of a Community Service Order, the Magistrate said this in his Reasons for Sentence:

“11. Community service was not recommended due to the appellant’s status as a visitor. I was satisfied community service was not appropriate and that a term of imprisonment was appropriate. In so deciding I bore in mind all that said by the Court of Appeal in HKSAR v LEUNG Pui-shan CACC 317/2007 of the need for individual justice. I was satisfied a starting point of 9 months imprisonment was appropriate for each charge, which starting points I reduced to 6 months imprisonment by reason of the pleas of guilty.”

7.I feel unable to say that the Magistrate failed to give proper consideration to the merits of imposing a Community Service Order.  As to why he did not suspend the sentences which he imposed, the Magistrate considered the Appellant’s natural wish to return to Australia to see his dying step-brother, the impact on the Appellant’s employment prospects and his background.  I feel unable to say that the Magistrate failed to give due consideration to all the circumstances.

8.The impact on the Appellant’s immigration status of an immediate custodial sentence could not possibly had been lost on the Magistrate.  It did not render an immediate custodial sentence wrong in principle or manifestly excessive.

9.As to the degree of criminality involved, the Magistrate was plainly aware of it and the sentence which he imposed was in line with the level of sentence in comparable circumstances.  The sentence was neither wrong in principle nor manifestly excessive. 

10.I can sympathise with the Appellant, but I cannot say that the Magistrate has erred.  The appeal is dismissed.

Mr Michael Delaney, instructed by Messrs Laracy & Co., for the Appellant

Ms Irene Fan, of the Department of Justice, for the Respondent