HKSAR v. Chau Kam Lun

HCMA 607/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 607 OF 2013

(ON APPEAL FROM ESCC 2957 OF 2013)

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J U D G M E N T

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1.This is an appeal against a sentence of three months' imprisonment passed in the Magistrates' Court on a charge of theft to which the Appellant had pleaded guilty. The theft was committed at the Grand Hyatt Hotel in Wan Chai and was of three boxes of crayfish. The brief facts of the case which the Appellant admitted were as follows:

“On 20 August 2013 at 1000hrs, at Grand Hyatt Hotel, 1 Harbour Road, Wanchai, D is delivering frozen meat to kitchen of the hotel at above location. After delivering frozen prawn to the kitchen, D took away three boxes of crayfish (EXH-1) from a fridge and placed them onto D’s trolley. A chef (PW1) found EXH-1 was missing, and located D in the hotel’s carpark. PW1 recovered EXH-1 from the trolley, and D admitted to PW1 that he had stolen EXH-1. Case reported, and D was arrested by PW2. Under caution, D admitted committing offence out of momentary greed.

2. PW1 recognized EXH(1) belongs to the hotel.”

2.Four perfected grounds of appeal, all going to essentially the same point, have been filed on the Appellant's behalf. They read as follows:

“1. The learned magistrate erred in finding that there is an element of breach of trust involved. (Appeal Bundle, p.14 at H-I, and p.21 at N-O)

2. There is no evidence or no inference can be drawn to support the learned magistrate's finding that had the Appellant not been delivering goods, he would not have been permitted into the kitchen. (Appeal Bundle, p.14 at K)

3. The learned magistrate erred in placing too much weight on the breach of trust element and/or failed to give sufficient or due weight to other relevant factors in considering sentence.

4.  The sentence is manifestly excessive and/or wrong in principle in all the circumstances.”

3. In my view, the Magistrate's approach was justified. There is as a matter of common sense no reason to think that the Appellant would have been permitted into the kitchen of the hotel if he had not been able to put forward some valid reason for entry. The reason which he presented was the valid one of making delivery there. He used that opportunity to commit theft. The Magistrate was right in taking the view that those in control of premises have to be able to trust persons making delivery at the premises.

4. The grounds of appeal, though ably argued, fail. The appeal is therefore dismissed.

Mr Fung Sik-yue, of SY Fung, Solicitors,for the appellant

Miss Rosa Lo, of the Department of Justice, for the respondent