HKSAR v. YEUNG KA WAH KELVIN

HCMA256/2001 and
HCMA257/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.256 AND 257 OF 2001

(ON APPEAL FROM ESCC 536 AND 585 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 20 February 2001 of two charges of theft which arose out of a shoplifting. He was sentenced to 6 months' imprisonment on each and the sentences were ordered to run consecutively. The appellant now appeals both those sentences.

2. The first ground of appeal is that the sentences were manifestly excessive. The facts were that on 8 February 2001, the appellant was apprehended in the supermarket shoplifting and on 13 February 2001 was again arrested for shoplifting in a second supermarket. On each occasion, they were blatant shoplifting offences.

3. Mr Chan, for the appellant, does not press very hard, his first ground of appeal that the sentences were manifestly excessive and with that I agree. The sentences was on the high side but appropriate for the offences committed and the first ground of appeal must fail. The second ground of appeal raised by Mr Chan is that the magistrate did not fully consider the principle of totality when making the sentences consecutive. He accepts that the sentences were in respect of two entirely separate and distinctive offences on separate days. The magistrate was entitled to impose consecutive sentences. But he argues that, given that each of the sentences is perhaps on the high side in respect of a shoplifting offence, the totality becomes excessive. With this I do agree. In these particular circumstances, it would have been appropriate for the sentences of imprisonment in respect of the second offence to commence four months after that imposed for the first offence.

4. I therefore allow the appeal to the extent that the second sentence of six months' imprisonment is to commence four months after the commencement of the first sentence of imprisonment, giving a total of 10 months' imprisonment.