HKSAR v. LAU KIN WAH

HCMA355/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.355 OF 2004

(ON APPEAL FROM KCCC 633 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on 5 March 2004 of one charge of theft and was sentenced on 19 March 2004 to 18 months' imprisonment.

2. The facts were that the victim was trying on clothes at a shop in the Marco Polo Hotel, to do so he placed his shoulder bag on the floor. Whilst trying on the clothes he looked to his bag and found that it had disappeared. He left the shop and found the appellant outside and asked him if he had taken the bag. The appellant fled, discarding the bag. He was caught and he was arrested.

3. The appellant had some 23 individual previous convictions for theft and numerous other offences. He submitted he was dying of liver cancer which turned out, upon a check by the magistrate, to be untrue.

4. The magistrate, considering the nature of the offence and the mitigation, came to the view that a starting point of 21 months' imprisonment was appropriate relying on the case of HKSAR v. Chan Pui Chi [1999] 3 HKC 848. No issue is taken that this was the appropriate starting point. There was no other mitigation other than the plea and the magistrate said this :

"... A full one-third discount is appropriate for a guilty plea at an early opportunity with a clear record; that would have taken the sentence down to 14 months in prison. This was not the case here. On his late plea, I gave the defendant a reduced discount of 3 months instead of 7, and sentenced him to 18 months in prison."

5. The one-third discount is appropriate in circumstances where a defendant does not enter his plea consequent upon a ruling made by the court nor as a tactical decision. In his case, the plea was made without any proceedings having taken place other than the plea and was made before any evidence was called. In those circumstances, a full one-third discount is appropriate and this appeal is allowed to the extent that a sentence of 14 months' imprisonment is imposed in lieu of the 18 months' imprisonment imposed by the magistrate.