R. v. Cheng Chin Ming

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 508 OF 1995

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J U D G M E N T

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1. This is an appeal against sentence imposed by Mr. McNair, the magistrate in Tuen Mun, on March 25th 1995.

2. The Appellant was convicted of going equipped for stealing. The magistrate has set out in very clear terms his statement of findings for which I am grateful. The Appellant was 26 and was a person of good character. He was a first offender and therefore it was incumbent on the magistrate to consider whether or not there were other ways of dealing with him, apart from imprisonment. The magistrate said: "I considered that a deterrent sentence was apposite." I do not understand this approach. The sentence must be for the offence. There are instances where deterrence must be appropriate, but this was not so here. Further, the magistrate said age and good character were not mitigating factors. With respect, I disagree. They are highly relevant in the sentencing process apart from those very serious offences such as drug trafficking. The sentence was 6 months imprisonment.

3. In my judgment, albeit that this was as the magistrate very properly pointed out, a deliberate method of committing this crime, it is a classic case for a short sharp shock. The sentence should have been in the region to 1 to 2 months imprisonment.

4. Furthermore, he was refused bail pending appeal. I do not know why he was. I have said on a number of occasions, the magistracy should not be sensitive about giving bail pending appeal particularly for the short type of sentence with a person of good character. The sentence is reduced to 2 months imprisonment, which means he can be released now.