HKSAR v. Chan Tin Fong

HCMA 635/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 635 OF 2011

(ON APPEAL FROM TMCC 3006 OF 2011)

____________

Before: The Honourable Mrs Justice V Bokhary in Court

Dates of Hearing: 22 November and 20 December 2011

Date of Judgment: 20 December 2011

__________________________

J U D G M E N T

__________________________

1.This Appellant, a man in his mid-sixties, pleaded guilty before Stephen Smout, Esq. in the Magistrates’ Court to theft. He had stolen from a supermarket eight food items of a total value of $182.50. Although he has a number of previous convictions, only one was similar to the one to which he pleaded guilty this time. Since that previous conviction was in 1972, the Magistrate treated the present conviction as the Appellant’s first conviction for an offence of this type.

2.The Appellant asked to be sentenced to two days’ community service.  Not surprisingly the Magistrate did not consider that an appropriate course.  Instead he imposed a fine of $1,000.

3.The duty lawyer representing the Appellant asked the Magistrate to grant two months to make payment, and the Magistrate granted such time.

4.The Appellant now appeals against that fine.  In his Notice of Appeal, he complains that it is too severe, and says this: “The more appropriate sentence should be a 30-hour community service order.  Currently, the minimum wage is $28 per hour, so 30 hours already amount to $840.”

5.On the face of it, the Magistrate’s sentence is by no means too severe.  But the Appellant having said that he had to steal food to feed himself, I felt that the Court ought not to proceed with the appeal without knowing more of the Appellant’s background.

6.So when the appeal first came on for hearing on 22 November this year, I adjourned the matter for a community service and background report.  Such a report is now to hand.  In that report, it is said that the Appellant explained the offence on the basis that it was to compensate himself for the theft of his octopus card with a stored value of over $500 and it was also committed because “he just wanted to eat some delicious food.”  Community service is not recommended.

7.All things considered, I see no proper basis on which to interfere the sentence which the Magistrate imposed.

8.The appeal is therefore dismissed.

Appellant in person

Ms Noelle A Chit, of the Department of Justice, for the Respondent