HKSAR v. SUEN PING

HCMA778/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 778 OF 1998

(On appeal from KTC1300 of 1998)

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J U D G M E N T

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1. The appellant appeals his conviction on 23 June 1998 for an offence of Theft. He was tried before Mr Henry Mierczak, Permanent Magistrate sitting at Kwun Tong Magistracy. On that day he faced two offences of theft, both relating to the theft of mobile telephones at a Jockey Club betting centre on 7 February 1998. He pleaded guilty to the theft of one of the phones but not guilty to the theft of the other and a trial ensued. In the end result Mr Mierczak convicted the appellant of the contested offence of theft and sentenced him to serve 9 months' imprisonment in respect of that offence and 6 months' imprisonment in respect of the offence to which he had pleaded guilty. He ordered both sentences be served consecutively. I have yet to deal with the appellant's appeal against sentence.

2. At trial the appellant was represented by a lawyer from the duty lawyer service and he testified on his own behalf, but called no witnesses.

3. In brief, the prosecution's case was that the appellant and another man were in a Jockey Club betting centre. It was crowded and was patrolled by a group of plainclothes police officers. They saw the appellant throw a mobile telephone to another man. An investigation ensued and it became apparent that the mobile phone which had been thrown had been stolen shortly before.

4. The learned magistrate reminded himself that he was not dealing with a "fleeting glance" situation and applied the doctrine of recent possession in finding that the appellant had been guilty of the theft.

5. The appellant, who was unrepresented before me, in effect says that Mr Mierczak wrongly evaluated the evidence and was prejudiced against him. He has not been able to point out to me in what way Mr Mierczak misinterpreted the evidence or in what way Mr Mierczak showed any prejudice towards him. Having read the transcript of the proceedings, I can say that Mr Mierczak conducted the trial with the utmost fairness and showed no prejudice or favour for or against any party to the proceedings.

6. This is a case which, yet again, revolves around the credibility of witnesses for the prosecution and the defence. It also revolves around the drawing of necessary inferences from the primary facts found proved. The person who is best equipped to resolve those issues is the trial magistrate, who has the duty of doing so under our system of justice. From his statement of findings it is quite clear that Mr Mierczak understood the evidence given before him and applied it correctly. He was aware that although he disbelieved the appellant, the burden of proving the offence lay and always lay with the prosecution. Mr Mierczak had the advantage, which I do not have, of having heard and seen all the witnesses, including the defendant himself, give evidence and observe their demeanour.

7. There's nothing in the transcript of the record of the proceedings, or in Mr Mierczak's findings, that indicates his approach to the evidence was wrong or that he misunderstood it, or that he misapplied the law in any way. As I said in an earlier appeal this morning, it is not for me to substitute any view that I may have on reading the appeal bundle for his view on the veracity of witnesses. I am satisfied that Mr Mierczak's conviction of the appellant on the count of theft of the mobile telephone is unassailable on appeal and the appeal against conviction is dismissed.

8. I now turn to the question of the appellant's appeal against sentence. The terms of imprisonment that Mr Mierczak imposed were the sentences I have already spoken of. The appellant was then serving a total of 21 months' imprisonment in respect of other offences. Mr Mierczak ordered that the sentences in respect of the thefts of the two telephones be served consecutively, making a total period of 15 months, but ordered that five months of that be concurrent with the 21 months being served by the appellant and that 10 months be consecutive to it.

9. The appellant is 40. Starting from July of 1981, up to 18 March of this year, he has a total of 30 previous convictions. Many are for theft or attempted theft, many are for possession of dangerous drugs. As far as I can see there is one offence of blackmail, one offence of loitering, one offence of operating an unlicensed massage establishment, one of giving false information to a pawnbroker, one of resisting arrest and one of going equipped for stealing. The pattern of the convictions shows that every year the appellant is in trouble before some Magistrate Court or other. Clearly, he has spent all his adult life committing petty offences.

10. Mr Mierczak regarded these offences as akin to pickpocketing, which they clearly are and, given the appellant's bad criminal record, was of the view that custodial sentences were the only means of punishing him. He had regard to the totality principle and decided that a total period of imprisonment for both offences of theft of 15 months was appropriate. I think he was "spot on" there, that certainly was the appropriate period of imprisonment for these two offences taken together.

11. He correctly applied the totality principle in having regard to the sentences the appellant was currently serving, realising that if he were to make the sentences for the two theft offences consecutive that would result in the appellant being in prison for an over-long period of time. He properly took account of that and reduced the overall period of imprisonment by five months. He was perfectly right and well within principle to do so.

12. Before me this afternoon the appellant says if he is not let out of prison soon he won't be able to sponsor his elder brother to come from China. While I sympathise with him there, he should have had that well in mind before he decided to help himself to two mobile telephones earlier this year. The appeals against sentence are dismissed.