HKSAR v. TSANG HIN PUN

HCMA 798/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 798 OF 1999

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO. ESCC 2075/1999)

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J U D G M E N T

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1. This Appellant pleaded guilty in the Magistracy to 3 charges of Theft and 17 counts of Obtaining Property by Deception. In respect of the three charges of Theft, he was sentenced to 4 months imprisonment for each. They were ordered to run consecutively. In respect of charges 4 to 20, the Appellant was sentenced to 6 months on each, all were ordered to run concurrently with one another, but consecutively to the sentences on charges 1, 2 and 3. That resulted in a total sentence of 18 months' imprisonment. The Appellant now says that the sentence was too severe and that no adequate account was taken of totality.

2. The Appellant had stolen one credit card from his mother's and 2 credit cards from his former girlfriend's mail, had activated the cards and used them.

3. Appellant, who represented himself at the appeal, submitted that the first three sentences should have been made to run concurrently because they were of the same nature and, in respect of charges 2 and 3, they involved theft from the same person and the same bank.

4. He pointed out that he had no record; that he was of a comparatively young age (26 years); that he had pleaded guilty and that all those factors should go to reduce sentence. He told the court that he had been out of a job at the time these offences were committed, that he was very remorseful and that his family was now in financial difficulties and needed his support.

5. He did concede that the court had reduced the starting point of the sentences for his pleas and agreed that had been done correctly by the Magistrate.

6. The Magistrate took into account that Appellant was 26 years of age and had a clear record; he took into account also his pleas of guilty at the first opportunity. He noted that the Defendant had come from a hardworking happy family background. No background report was sought, nor was a C.S.O. report sought. A background report might have been helpful in this case as Appellant was a first offender, but it was unlikely that a Community Service Order would have been made for this number of offences.

7. The Magistrate pointed out, correctly, that these were premeditated offences committed over a period of about 3 months. They involved a fairly substantial sum of money as the Appellant's practice, having stolen the 3 credit cards, was to purchase gold ornaments. The only purchase that was not gold ornaments, was one of a pair of trousers. There was no recovery of the property, except for one gold bracelet, which was recovered from the pawnshop, and the pair of trousers.

8. I consider that the Magistrate's sentence was a proper one in the circumstances. His starting point of 6 months for each of the thefts was correct and he gave the appropriate 1/3 discount. It was also correct to order those sentences to run consecutively, given the dates of the charges.

9. For the offences of obtaining by deception, the Magistrate took a starting point of 9 months for each, reduced by 1/3 to 6 months. All sentences on charges 4 to 20 were ordered to be of 6 months duration and to run concurrently.

10. The Magistrate considered the question of totality and ordered the sentences to run consecutively to those for charges 1 to 3. It is difficult to fault the way he dealt with the sentence.

11. The Appellant's mother who was in court today, has spoken on Appellant's behalf saying that up until this incident he was a good and dutiful son. She also pointed out that she herself has been unemployed and that her son was unemployed without her knowing of it at the time of these offences. Her husband, Appellant's father, is not in good health.

12. I have decided at an act of mercy to take those matters into account, particularly the family circumstances and I allow this appeal to the extent that charge 2 is to run concurrently with charge 3, but otherwise all sentences remain the same. That reduces the total sentence by 4 months to 14 months.

13. It is possible that if the Magistrate had sought a background report these matters might have been brought more directly to his attention, because although counsel dealt briefly with the major matters of mitigation, there was not a lot of material put before the Magistrate, relating to Appellant's family circumstances.

14. However, I stress that this reduction of sentence does not reflect on the Magistrate's sentence at all, because it was an appropriate sentence in the way it was computed and decided.