HKSAR v. BAGTAS ALICIA CAWIVEL

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 195 OF 1998

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J U D G M E N T

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1. On 11th February of this year, the Appellant was convicted on her own pleas of two charges, the first being theft, the second being one of breaching a deportation order. She was sentenced to nine months and six months respectively; the sentences to be served consecutively. She now appeals against the totality of those sentences as being manifestly excessive. In effect, however, she has simply thrown herself on the mercy of the court and pleaded for a reduction.

2. As concerns the charge of theft, the Appellant stole a wallet in a shop in Tsim Sha Tsui and appropriated the contents which consisted of various credit cards, $1,000.00 in Hong Kong currency and some Malaysian money.

3. This is not the first time that the Appellant has been in trouble with the law in Hong Kong. She has been convicted of pick-pocketing in January 1991 and again in 1994. In 1994, she was also in breach of a deportation order. She was convicted of theft in 1996 and again in that year was in breach of a deportation order. This reveals a persistent history of illegal conduct in Hong Kong.

4. The Appellant says she wishes to mend her ways. She has asked for mercy, saying that she has six brothers or sisters at home who urgently require her assistance. As for her arrival in Hong Kong, she has said that things were so difficult in Philippines that she was persuaded to join a group of people coming here illegally.

5. Concerning the sentences passed, in respect of the theft, the Magistrate took 15 months as a starting point and reduced it by one-third to ten months for the plea of guilty. This was in accordance with the guidelines. In light of Appellant's previous convictions, the Magistrate was unable to grant any further discount. However, when the Magistrate considered the sentence for this first offence with the sentence imposed for the breach of the deportation order, the totality of the Appellant's moral culpability was considered and it was decided that the first sentence should be reduced by a further month.

6. As concern the offence of breaching the deportation order, the Magistrate adopted the starting point of twelve months and reduced it to six months by allowing for the normal one third discount for a plea and again by considering the totality of this Appellant's moral culpability. The Magistrate therefore coloured the sentence with a generous degree of mercy. In my judgment, the Magistrate had no option but to order that the two sentences should be served consecutively. That was correct in principle and meets the justice of the circumstances.

7. The sentences were neither wrong in principle nor excessive. The appeal is dismissed.