HKSAR v. WONG KONG

HCMA599/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 599 OF 1999

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J U D G M E N T

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1. The Appellant was charged with four offences originally. After pleading guilty to three charges, the prosecution decided to offer no evidence on the resisting arrest charge. The Appellant was then convicted of the three other charges which were :

(1) remaining in Hong Kong without the authority of the Director of Immigration (1st charge);

(2) going equipped for stealing (3rd charge); and

(4) possession of offensive weapon (4th charge).

2. The admitted facts show that the Appellant was seen by the police wondering around in Shek Wu Hui Old Market in the early hours of 13 May 1999. Subsequently the Appellant was arrested and his illegal status discovered. In fact the Appellant had no identity card on him. Then the three items were found which formed the basis of the third and fourth charges : they were two fruit knives and one chisel. The Appellant admitted under caution that the chisel in the going equipped charge was intended to be used for stealing bicycle and that he ran because he had the knives on him.

3. The Appellant was represented by the Duty Lawyer in the lower court and after listening to the mitigation, the learned Magistrate imposed an overall term of 18 months for the offences. The Appellant now appeals against the sentences.

4. The Appellant stated that at the time he did not think of stealing things and that the police had beaten him up.

5. In his Reasons for Sentence, the learned Magistrate indicated how he had arrived at the final sentence of 18 months. He adopted the starting point of 15 months for the illegal remaining charge, 12 months for the going equipped charge and two years for the offensive weapon charge. Then he reduced each of the terms to nine month by reason of the Appellant's clear record, age and guilty pleas. With a combination of concurrent and consecutive terms, the Magistrate had arrived at the final sentence of 18 months.

6. I consider that the starting points adopted were not really appropriate ones. 15 months for the illegal remaining charge should be the sentence after plea, and that the two other starting points were set at too high a level. Furthermore, the proposed discounts given by the Magistrate for the mitigating factors were not in accordance with the usual one-third approach and were rather inconsistent.

7. However, I must say that although I disagree with the logic of the determination of sentence, I agree that at the time of sentence, as Counsel for the Respondent stated, the learned Magistrate had the ultimate term in mind.

8. The 18 months imposed was neither wrong in principle nor manifestly excessive. In the circumstances, I will dismiss the appeal accordingly.