HKSAR v. CHEUNG PING ON

HCMA 984/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 984 OF 2003

(ON APPEAL FROM KCCC 11895/2003)

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J U D G M E N T

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1. The Appellant had pleaded guilty in the Magistrate's Court to one charge of theft and was sentenced to 13 months' imprisonment. He now appeals against that sentence.

2. The facts were that police officers, in the early hours of the morning of 18 July last year, saw the Appellant go to the side of a man, sleeping on the stairs, and opened the rucksack of the sleeping man and took out a mobile telephone. The Appellant was then seen to hand this telephone to his accomplice who was nearby. Subsequently, the police found the telephone in the possession of the accomplice and the victim identified it as his.

3. The Appellant, although, he pleaded guilty disputed the facts of the prosecution. So witnesses were called for the Newton enquiry.

4. At the end of the day, the learned Magistrate found that the prosecution's version of the events was true. When the learned Magistrate was considering sentence, he correctly said that the range of sentence for this type of pickpocketing offence should range between 12 to 15 months. He took a more serious view of this pickpocketing offence because there was an additional aggravating factor as the Appellant was not acting alone.

5. It was also made known to the learned Magistrate that the Appellant had 4 previous convictions, 2 of which were similar. So the learned Magistrate decided to give the Appellant a 2-month discount and therefore sentenced the Appellant to 13 months' imprisonment.

6. The Appellant, who represents himself on this appeal, said that he merely took away the telephone from the rucksack and that should not be viewed as pickpocketing. Well for the Appellant's information this is what pickpocketing is? The Appellant also said that the learned Magistrate should give him a full 1/3 reduction for his plea.

7. It is clear that the learned Magistrate was entitled to give a lesser discount because the learned Magistrate had to hold a Newton enquiry as the Appellant had disputed the facts. As submitted by Mr Madigan, the Magistrate had referred to the case of HKSAR v Nguyen Thi-lan, MA 630/2002.

8. So in all the circumstances, the learned Magistrate had properly taken into account all that can be said on behalf of the Appellant and also the aggravating factor in this case and arrived at the sentence which I cannot say is manifestly excessive or wrong in principle.

9. So the appeal is dismissed.