HKSAR v. LAM CHUN WAI

HCMA1193/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1193 OF 2003

(ON APPEAL FROM TWCC 2715 OF 2003)

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J U D G M E N T

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1. On 14 November last year the appellant (who is aged 37), having pleaded guilty at Tsuen Wan Magistrates' Court to two offences of theft and to one offence of assault occasioning actual bodily harm, was sentenced to 12 months' imprisonment in respect of each offence.

2. Six months of the terms imposed for the second theft and for the assault were ordered to be served consecutive to the 12 months imposed for the first theft with the result that the appellant was ordered to serve a total of two years' imprisonment. He appeals against that sentence suggesting that it was too severe.

3. In his succinct and helpful Reasons for Sentence the magistrate says, inter alia, the following :

"At 1045 on the morning of the 26th August 2003 [the appellant] and another male were seen inside Park' N Shop in Maritime Square Tsing Yi pushing a supermarket trolley full of boxes of moon cakes through the customer entrance point without making payment. A staff of the shop (PW1) spotted them and chased after them but lost sight of them.

PW1 reported the matter to the manager and was about to call the police when he noticed the same men pushing another supermarket trolley full of moon cakes out of the shop. PW1 chased after the men and saw the other man push the trolley into the fire exit door of the shop and [the appellant] prevented PW1 from entering the fire exit door area. Seconds later the other male came out from the fire exit area and both he and [the appellant] tried to flee down the shopping centre staircase.

PW1 chased after the 2 men and raised a hue and cry which drew the attention of a another staff of the shop (PW2) and a security guard (PW3). PW2 managed to catch [the appellant] who put up a struggle and punched PW2 in the face. PW2 suffered an abrasion on the nose, chin and right thumb for which he was treated at the Princess Margaret Hospital.

The value of the moon cakes referred to in the charges was $2,792 and $1173 respectively.

In mitigation I was told that [the appellant] is a transportation worker earning $6500 per month. He has 21 previous convictions mostly theft related.

Although the offences were theft it seems clear from the above facts that charges of burglary would have been more appropriate. [The men] had clearly entered the shop with the intention of stealing the moon cakes and had no intention of purchasing any products of the store. The offences were committed brazenly and [the appellant] was prepared to use violence to try to effect his escape.

For the two offences of theft I took a starting point of 18 months having regard to the nature of the offences and to the fact that [the appellant] is a professional thief. I also took a starting point of 18 months for the assault. Deterrent sentences are appropriate to protect ordinary shop staff carrying out their job. I gave a one third discount to reflect the guilty pleas.

I considered the totality principle and decided that six months of the sentences in respect of the second and third offences should be served consecutively to each other and to the first offence making a total sentence of two years imprisonment."

4. It should perhaps be noted that appellant's last conviction was in May 2003. That was for an offence of burglary and he was sentenced to 12 months' imprisonment. Plainly he had learned nothing from that experience which is perhaps unsurprising given (as the magistrate says) his 21 previous convictions for a total of more than 40 offences (mostly for dishonesty but also for violence) committed over the last 20 years.

5. The sentences imposed by the magistrate for these offences were heavy ones. They were clearly intended to be such. The appellant is a persistent thief who is not averse to using violence when it suits his purpose. I am not prepared to say in those circumstances that the sentences imposed were a day too long.

6. Accordingly this appeal is dismissed.