HKSAR v. Ansir, Mahmood

HCMA349/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 349/2011

(ON APPEAL FROM FLCC NO. 3070 OF 2010)

____________________

Before: The Honourable Mr Justice Line in Court

Date of Hearing: 15 June 2011

Date of Judgment: 15 June 2011

_______________

J U D G M E N T

_______________

1.This is an appeal against both conviction and sentence.  The conviction was for tampering with a motor vehicle, contrary to section 49 of the Road Traffic Ordinance, Cap. 374. The sentence was one of 8 months’ imprisonment.

2.The Appellant was the driver of a light goods vehicle.  His passenger was the 1st Defendant.  He pleaded guilty. This Appellant was the 2nd Defendant.  The vehicle went to a car park.  It was late at night.  The vehicle had its lights turned off when it drove around inside the car park.  It stopped by another goods vehicle, and the two got out.  They looked inside the goods vehicle that was parked there, then drove around the car park again and came back.

3.The Appellant parked his vehicle not in a parking space but in the passageway right by the goods vehicle.  The Appellant then moved off and positioned himself in a way that was held by the Magistrate to be entirely consistent with acting as a lookout.

4.His passenger, who was his employee at the time, then used a screwdriver to prise the door of the goods vehicle.

5.The police watched all this.  They pounced, and arrested the two men.

6.It is submitted in this appeal against conviction today that there was not enough in those facts for the Magistrate to draw the irresistible inference that the Appellant was guilty.

7.I disagree.  The Magistrate set out at paragraph 109 of his statement of findings the matters which led him to draw the irresistible inference of guilt.  All I need say is that I agree with him.

8.The excuse offered for the conduct of standing for some three minutes in the position where a lookout would stand was that the Appellant was looking for a lavatory.  The movement of the vehicle, the stopping, the looking in the goods vehicle which was tampered with, (and its owner was called to prove tampering damage,) and the like, demonstrate to me that these two men were acting in concert, and that the plan between them was to do something which amounted to tampering with the vehicle in question.

9.That is all I need say about the appeal against conviction, and it merely comes to this:  that the matters set out at paragraph 109 amply support the inference.

10.I then turn to the question of sentence.  The sentence of 8 months was a robust one, and the Respondent to the appeal acknowledges that to be so.

11.The 1st Defendant pleaded guilty.  He was called as a defence witness.  He had previous convictions.  It is a matter of regret that I do not have the full details of them, but the papers that I do have disclose that, and I quote from what was said, “He had several convictions which were for taking a conveyance and so on.”  Thus in his case, what was a fairly sophisticated piece of tampering with a vehicle well merited the starting point which the Magistrate took of 9 months’ imprisonment; hence, with his discount for the plea, he was sentenced to 6 months.

12.This Appellant had a clear criminal record, and he was a man who had demonstrably been working for much of his life legitimately, and there was a probation officer’s report upon him that revealed those matters.

13.The Magistrate in his case took the same starting point of 9 months, but reduced it by 1 month to 8 months for the clear record.

14.Appeals against sentences from summary convictions are rehearings, and I do not have to say the Magistrate was wrong, and I do not say he was wrong.  If my view differs, and it is less than the Magistrate’s, then the Appellant is entitled to the benefit of it.  I would not have been as high on these facts as 8 months.  I would have passed a sentence of 6 months.  There is a difference between a man who has reached 33 years of age who has been working legitimately in his life and who is a family man with a clear record who goes tampering, even in a more serious tampering case such as this, and someone with previous convictions for taking motor vehicles “and so on”, I think the gap between them, with justice done, can be greater than that which the Magistrate chose.

15.So what I shall do is dismiss the appeal against conviction.  I shall allow the appeal against sentence, but only to reduce the sentence of 8 months to one of 6 months’ imprisonment. 

16.The bail application, pending appeal, which is also listed before me, is dismissed.

Mr Harish Melwaney, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Charles J Chan, instructed by Ivan Tang & Co, for the Appellant