THE QUEEN v. LEE KWOK KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 926 OF 1989

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BETWEEN

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J U D G M E N T

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1. The appellant pleaded guilty in the Magistrates Court to a charge of theft. The facts of the case were quite simple. It was a pick-pocketing case in which the appellant had taken the wallet of a passenger on a train bound from Lowu to Kowloon at about 9:55 on the 11th June 1989.

2. The victim immediately detected the o fence raised an alarm and the appellant was instantly arrested.

3. He pleaded guilty and was sentenced to imprisonment for 18 months. He is 35 years of age and has nine previous convictions over the past nine years, eight of which were for theft or pick-pocketing. As the learned magistrate observed in his Statement of Findings for these offences he had been sent to prison for terms ranging from two months to two years.

4. His latest conviction was on the 12th August 1987 when for the offense of attempted theft (pick-pocketing) he was sentenced to imprisonment for 18 months.

5. In his plea of mitigation before the learned magistrate he said that he was discharged from prison in respect of that sentence in September 1988 so that this offence was committed some nine months after his discharge from prison.

6. The learned magistrate observed that that was his history and said that for an habitual offender such as the appellant a deterrent sentence was called for and after giving him every credit for his plea of guilty she ordered that he be sentenced to imprisonment for 18 months.

7. The appellant now appeals against that sentence contending that it was excessive and relies on three grounds. The important one is that the recognised tariff having regard to the authorities suggests that 18 months is far too high.

8. Mr. Plowman, who appears for him on this appeal, relies on some seven authorities, namely Chan Ki Sai Cr. App. 236 of 1983, Kwan Sui Ying Cr. App. 327 of 1984, Chi Mo Cr. App. 340 of 1984, Leung Kim Bor Magistracy App. 774 of 1988, Hau Tai Wai Magistracy App. 769 of 1987, Tran Tuang Tuan Magistracy App. 360 of 1989 and Pham Pam Huy Magistracy App. 412 of 1989.

9. Before the hearing of this appeal Mr. Plowman in accordance with the practice direction submitted the list of those authorities both to the court and to the respondent.

10. Mr. Stone who appears for the respondent, today has informed me that he has considered those authorities and has come to the conclusion that the proper sentence in this case ought to be one of the imprisonment for 12 months.

11. Mr. Plowman, in reply, tells me that it would have been his submission, had Mr. Stone not made that concession, that on the basis of the authorities, the proper sentence in this case should have been one of imprisonment for 12 months. It does appear, therefore, that the tariff suggested by those authorities has been exceeded and that a sentence of imprisonment for 18 months is manifestly excessive. I, therefore, allow the appeal, quash the sentence and substitute in lieu thereof a sentence of an imprisonment for 12 months. To that extent the appeal is allowed.