HKSAR v. CHEN JUTING

HCMA 705/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 705 OF 1999

(On Appeal from NKCC 3444 of 1999)

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J U D G M E N T

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1. The Appellant in this case appeals against a sentence of 18 months on a charge of Theft. The Appellant and an accomplice stopped a passer-by in the street in the early morning and escorted him in some manner to a staircase in a nearby building, apparently under the pretext of sharing with him some money that they had in a bag. It does not appear that the victim could actually understand what was going on, possibly because the Appellant and his accomplice were speaking Putonghua.

2. At the staircase, the victim's necklace was snatched and $500 cash was taken from his wallet. The Appellant and his accomplice fled and the victim gave chase. The Appellant and his accomplice were eventually apprehended in a nearby motel room by the police.

3. Before me today the Appellant submitted that the sentences are too high and, in particular, he asked leniency from the court because his father is ill, his wife is divorcing him and he was the main breadwinner of the family. He said his family circumstances deserved leniency. He also considered this sentence was "a bit high" and said that he read in the paper of similar cases where the range of sentence was 6 months or 12 months.

4. The Magistrate in deciding sentence took into account that this was a carefully planned theft and there was a degree of preparation undertaken by the Appellant, to gain confidence of the victim. The Appellant and his accomplice were plainly acting together, they had lured the victim under some pretext to a secluded area, where an element of violence was used in snatching the necklace. The Magistrate considered the offence serious and took a starting point of 2 1/2 years. He gave the Appellant credit for his plea and reduced the sentence quite substantially to one of 18 months.

5. Today before me the Respondent has drawn my attention to the case of R. v. Nguyen Phan Linh Criminal Appeal No. 454 of 1989, Although the facts of that case are not particularly apposite, involving as they do the sentencing of a professional pickpocket, the court said there that they were concerned with an appellant who "committed a planned theft in concert with another in circumstances where he might well expect rich pickings with minimal risk of detection or conviction"; that is certainly the situation here. The court in Nguyen considered 2 1/2 years starting point was appropriate for that kind of offence. This was the view of the Magistrate here. Although I might query the starting point of 2 1/2 years, thinking that in this particular case, a 2 year starting point might have been more appropriate, I am mindful of the fact that the Magistrate gave a larger than usual discount for the plea of guilty and reduced the sentence to 18 months.

6. Accordingly, I do not consider there is any need to alter this sentence and the appeal is dismissed.