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DCCC36/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 36 OF 2010
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Date:
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27 April 2010 at 10.55 am
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Present:
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Ms Lisa Go, PP of the Department of Justice, for HKSAR
Mr Andy Cheng, instructed by Messrs Alvin Cheng & Rosaline Choy, assigned by the Director of Legal Aid, for the Defendant
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Offence:
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Attempted Theft(企圖盜竊罪)
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Reasons for Sentence
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1. Your counsel quite rightly pointed out that the most powerful mitigating factor, if not the only mitigating factor, is your guilty plea. But I don’t agree with him that the guilty plea shows remorse, not that you did not feel any sense of remorse.
2. I disagree with your counsel because the guilty plea would entitle you to one-third remission off the sentence whatever appropriate after trial. It does not depend on how remorseful you are. As long as you pleaded guilty, the sentencing policy is that the sentencing judge has no discretion but to give you one-third remission. One-third remission you get, and this I will give to you. Please do not thank me for that. If you want to thank anybody, thank the Court of Appeal who laid down this policy.
3. Ms Go for the prosecution quite ably assisted me by drawing my attention to the Court of Appeal case which had laid down the guideline in these type of cases. In that case it clearly laid down the principle that the personal criminal record of similar offence can be an aggravating factor.
4. I am not in a position to disagree with the Court of Appeal’s reasoning. The guideline is clear. I am bound to follow it, although it offends the previous golden principle that a person should not be punished again. But I think it can be justified for the Court of Appeal so to do, that aggravating feature is one of the deterrent elements of the sentence.
5. So when it comes to deterrence there are two aspects. If I want to pass a sentence incorporating the deterrent element I must be convinced that it would serve a purpose to deter you or to deter the others. I doubt very much whether any heavy sentence can deter you, not even death penalty, nor to deter the others. Or even it can deter others it does not serve any useful purpose.
6. Your record and the fact that you are a persistent offender, a habitual offender, is quite similar to the defendant in the case which has been cited to me, HKSAR v Ngo Van Huy, CACC107/2004. I said your background, your criminal record is similar, but I would not label you as a professional as such. You are just a petty thief which cause annoyance, great annoyance to your victim whether or not you succeed.
7. And I doubt very much any heavier sentence would have any deterrent effect on you. You go in and out of prison many times for a long time. And looking at your record, which is similar to the defendant in the Court of Appeal case I mentioned, and looking at the similar so-called aggravating features, I notice that you committed the offence in Nelson Street, Mongkok. Nelson Street is well-known to be one of the busiest spots in Mongkok, if not the most busy one. Although it did not say that it was crowded at the time, but it does not really matter whether it was a crowded place. It was late in the afternoon. I am not quite sure whether it is as crowded as the other times.
8. To summarise, I can distinguish to a limited extent this case from the Court of Appeal case, that your record is not as appalling as the defendant, and that the aggravating feature relating to the crowded place is not so apparently clear in the present case. In that case the Court of Appeal is of the view that 24 months’ imprisonment is a correct starting point. I am taking into consideration this is a slightly less serious case, and also the guideline that the starting point is 15 months to 18 months for a first offender.
9. So a starting point in your case is one of 22 months. As I said, you are entitled to one-third remission. It will cause some problem. I seldom pass a sentence in terms of months and days for one-third remission. Perhaps I will leave it to counsel. I will round it down for you, I think. How many months and how many days? I do not intend to, but applying the logic mechanically you arrive sooner or later at the result of this.
10. Never mind, I do it for you. So I think a proper and appropriate sentence, after rounding down, for your plea -- so I think, unless my arithmetic is wrong I mean, 14 months plus 7 days will allow for more than one-third remission. I do not think you would like 14 months. According to my experience in the magistrates’ courts nobody like the figure of 14. Seven days is a lucky number for you. Yes, 14 months and 7 days.
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H.H. Judge Yung |
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District Judge |
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