HKSAR v. SATWINDER, SINGH

HCMA 198/2018

[2018] HKCFI 1525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 198 OF 2018

(ON APPEAL FROM KCCC 165 OF 2018)

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JUDGMENT

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1.  The appellant was originally charged with the following 3 offences:

(1)   Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1);

(2)   Possession of Offensive Weapon in Public Place, contrary to section 33(1) of the Public Order Ordinance, Cap 245 (Charge 2); and

(3)   Possession of handcuffs with intent, contrary to section 17 of the Summary Offences Ordinance, Cap 228 (Charge 3).

2.  The appellant pleaded guilty to Charges 1 and 2 before Mr Joseph To (the magistrate) and was duly convicted of the two charges.  The prosecution offered no evidence on Charge 3 so that charge was dismissed.

3.  The magistrate sentenced the appellant to 10 months’ imprisonment for Charge 1 and 12 months’ imprisonment for Charge 2.  He ordered two months of Charge 1 to run consecutively to the sentence in Charge 2, making a total of 14 months’ imprisonment.

4.  The appellant appealed against sentence.

Summary of Facts

5.  The facts admitted by the appellant was that at around 12:30 on 12 January 2018, he entered a 7‑Eleven convenience store in Yau Ma Tei. He was holding a knife and asked the staff for a packet of cigarette.  The appellant took the packet of cigarette away without paying.  The matter was reported to the police and the appellant was located by the police nearby.  Search of the appellant yielded a knife (34 cm in length) with a transparent sheath and a packet of partly‑consumed cigarettes.  The appellant became agitated when further enquiry was about to be conducted and he had to be subdued and was later sent to the Kwong Wah Hospital.

6.  The appellant was legally represented before the magistrate.  In mitigation, his lawyer submitted that the appellant was a single man 26 years of age.  He was a torture claimant supported by International Social Security.  His parents were farm workers in India.  The appellant knew the offences he had committed were serious and custodial sentences would be imposed.  The appellant frankly admitted the offences, saving the court’s time.  He knew he had done wrong and would like to apologize to the staff of the store.  He was also willing to make compensation.  A lenient sentence was asked for.

Reasons for sentence

7.  In sentencing the magistrate noted that the appellant was a torture claimant who was allowed to stay in Hong Kong solely to pursue his torture claim.  The appellant abused the hospitality of Hong Kong and repeatedly committed serious offences.  The theft in the present case was particularly serious as the appellant had a knife in his hand at the time of the offence.  Previous sentences did not serve to deter the appellant and he committed the present offences shortly after his release from prison.  The magistrate adopted a global starting point of 21 months for both offences.  For Charge 1, the starting point was 15 months, for Charge 2, 18 months.  With a full one‑third discount, the resultant sentences for Charge 1 and 2 were 10 months and 12 months respectively.  The magistrate ordered two months of Charge 1 to run consecutively to the 12 months imposed on Charge 2, making a total of 14 months.

Grounds of appeal

8.  In the home‑made grounds of appeal, the appellant claimed that he was drunk and was mentally unfit on the day of the offence.  He suggests the court to look at his medical record kept by the Kwong Wah Hospital when he was hospitalized there for 8 days after the arrest.  He claimed to have been unfairly injected by staff of Siu Lam Psychiatric Centre when he was sent there before which affected his mental state.  He expressed his remorse and asked for a chance to have a reduction of sentence.

9.  In court the appellant submitted the same.  Adding that after he was shown the pictures he knew what he had done so he had no choice but to plead guilty.

My consideration of the submission

10.  First of all, there is nothing from the facts admitted by the appellant that he was drunk or being under the influence of alcohol.  The facts showed that he was so agitated that he was sent to the Kwong Wah Hospital.  In any event, even if the appellant were drunk at the time, that was not an excuse for him to commit those two serious offences.

11.  As to the appellant’s claim that he was mentally unfit, I do not see how that would assist him in this appeal (leaving aside whether the appellant was admitted to Siu Lam while he was serving his prison sentence or while he was on remand).  The facts admitted by the appellant was that he had gone into a convenience store and asked for a packet of cigarette.  He simply walked out of the shop without paying.  The appellant must have known that he did not make payment when he walked out of the shop.  It cannot be the case that the appellant was so affected by any mental illness that he did not know what he was doing.  I do not see how any mental illness suffered by the appellant, if any, would amount to a mitigating factor here.

12.  The appellant was allowed to stay in Hong Kong to pursue his torture claim.  He did abuse the hospitality of the Hong Kong people by repeatedly committed serious offences.  He was convicted of the offence of possession of offensive weapon in a public place and was sentenced to 6 months’ imprisonment in September 2017.  Shortly after he was released from prison, he committed the very same offence again.

13.  Whilst I appreciate the reasons given by the magistrate as to why these two offences were serious, and the fact that the appellant was a repeated offender as far as the possession of offensive weapon is concerned, I take into consideration the following factors:

i.   This was the first time the appellant committed a theft;

ii.   The property in question was a packet of cigarettes;

iii.   This is not a case of shop theft, which could be hard to detect;

iv.   This is also not a case of pick‑pocketing in a crowded place;

v.   The theft was done openly, no doubt the shopkeeper was scared by the knife held in the appellant’s hand, even though the appellant had not used the knife to commit the theft.

14.  In the particular circumstances of this case, even though the appellant has abused the hospitality of the Hong Kong people, a starting point of 15 months for the offence of theft is, in my view, manifestly excessive.

15.  In my view, a starting point of 9 months is appropriate for the theft in this case.  With a one‑third discount for plea, the sentence would be 6 months’ imprisonment.

16.  Now, coming to the offence of possession of offensive weapon, bearing in mind the size of the knife (34 cm), a starting point of 12 months would have been appropriate.  The fact that the appellant committed the same offence shortly after he was released from jail warranted an enhancement of 3 months. With a one‑third discount the sentence would be 10 months’ imprisonment.

17.  I am of the view that looking at the matters as a whole, a global starting point of 18 months would have properly reflected the appellant’s culpability.  With a one‑third discount, the total sentence would be 12 months.

Conclusion

18.  For this reason, the appeal against sentence is allowed.

19.  The sentences of 10 months and 12 months are set aside, and they are substituted by 6 months and 10 months respectively.

20.  I order that 6 months of the sentence of 10 months imposed on Charge 2 to run consecutively to the 6 months imposed on Charge 1, making a total of 12 months’ imprisonment.