HKSAR v. CHONG MAN KWONG

HCMA 786/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 786 OF 2010

(ON APPEAL FROM KCCC 3291 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  Even though the Appellant appears otherwise to be a suitable candidate for a community service order, I am convinced that the circumstances of this case, which the Magistrate has set out and I need not repeat, are too serious for a community service order.

2.  The Magistrate referred to what the Appellant might lose by way of pension rights, but he did not indicate that he took that factor into account when arriving at the sentencing starting point, and I do not feel able to say with sufficient confidence that he had so taken it into account.  Certainly, he did not make any deduction for it after arriving at his sentencing starting point.  That is clear since the only discount from his starting point which he gave is the one-third discount which the guilty plea attracted.  He had a discretion whether or not to take into account what the Appellant might lose by way of pension rights, but did not say that he was exercising his discretion to leave that factor out of account, and I do not feel able to say with sufficient confidence that he had duly applied his mind to his discretion in the matter.

3.  All things considered, I think that the just course is to reduce the sentence to reflect what the Appellant may lose by way of pension rights.  But I do not think that this should be done by as much as the two months suggested by the counsel for the Appellant.

4.  I allow the appeal to the extent of reducing the sentence by one month to five months’ imprisonment.  So the appeal is allowed to that extent.