HKSAR v. HUI WING HONG

HCMA 759/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 759 OF 2009

(ON APPEAL FROM ESCC 3311/2009)

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J U D G M E N T

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1.  This is an appeal against sentence of six weeks’ imprisonment suspended for two years imposed by a Magistrate at Eastern Magistracy.  The appellant was convicted after trial of the theft of the sports sections of the “Apple Daily” on 7 and 8 June 2009 from the Lockhart Road Public Library.

2.  On 8 June, he had been seen removing the anti-theft tags from the newspapers.  This was obviously not done very effectively because, as he left the library, he activated the alarm; and he was found to be carrying a bag of newspapers which included the two sports sections, both of which were missing from the library.  Their value was put at $12.

3.  The appellant denied the theft.  It was not clear to me whether he gave evidence in his trial, but I think not.  He was represented at trial by the duty lawyer, who made extensive submissions on his behalf, seeking to persuade the Magistrate that the appellant was not guilty.  In the result, the appellant was convicted and does not challenge the conviction.  He does however challenge the sentence.

4.  The appellant is 39 years of age and unemployed.  He has, he has told me today, some savings; he lives on those and with his family.  He has one previous conviction for theft in 2007, for which he was fined $2,000.

5.  The Magistrate said that he regarded the offence as serious, that for his previous offence he had been fined and yet he continued to offend.  So although the value of the items stolen in this case was small, the Magistrate took the view that a short period of imprisonment was appropriate which given all the circumstances, he decided that he could suspend.

6.  I have no doubt that the Magistrate had regard to the general inconvenience to users of public libraries if self-centred people like this appellant remove sections of newspapers which are made available, at public expense, for the benefit of all.  Theft of such newspapers must be a problem or the librarians would not go to the trouble of tagging them.

7.  Nevertheless, I cannot see how, in principle, a sentence of imprisonment can be justified for an offence such as this. The proper approach, of course, is to determine first whether the offence in question justifies a term of imprisonment, and if so, to fix the appropriate length of sentence; and then to determine whether there are exceptional circumstances which justify the suspension of the sentence.

8.  Sentences of imprisonment should not be suspended unless exceptional circumstances exist, and there must be the determination by the court that as a matter of principle the offence deserves or justifies the sentence of imprisonment, and that it would be served, but for those exceptional circumstances.

9.  In this case, taking that approach, it can be seen that although the appellant had absolutely no mitigation whatsoever, his offence did not justify a term of imprisonment, and therefore his appeal must be allowed.

10.  It is his second offence of theft.  The first resulted in a fine of $2,000.  And the second will also result in a fine of $2,000.

11.  I shall give the appellant some time to pay that fine, if he requires it, though he seems to have the money in his bank account to pay, and I shall fix a period three days’ imprisonment in default of payment.

12.  I have considered whether this is a case to make a costs order against the appellant but in fact, I am allowing the appeal, so it is not appropriate to do so.  He probably should have been ordered to pay towards the costs of the trial.  The theft of these newspaper sections by this appellant has put the public to huge expense.  The cost of the witnesses turning up at the trial, the costs of the prosecution, the costs of his duty lawyer, the costs of this appeal including an adjournment when he said he was going to apply for legal aid, and then has not done so, because he has got too much by way personal resources to get legal aid.

13.  And now the final hearing today.  Many thousands of dollars of public funds have been expended.  I am satisfied I am not in a position to make him pay the costs, because I have allowed the appeal; but the Magistrate might have considered, after this trial, making such an order, to at least recompense the public a little for the expense to which it has been put.

14.  The appeal is allowed.  The fine is $2,000.  I order seven days to pay; three days’ imprisonment in default of payment.