HKSAR v. YEUNG WING YIU

HCMA 1068/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEALS NO. 1068 OF 2001

(ON APPEALS FROM SKCC 2334/1999)

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J U D G M E N T

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1. The appellant pleaded guilty to one offence of theft in September 1999 and he was made the subject of a community service order requiring him to perform unpaid work of 160 hours.

2. Having completed some 39 hours and 30 minutes of that order he was brought back before the magistrate for failing to comply with certain conditions and the order was revoked.

3. The magistrate then proceeded in September of this year to sentence the appellant afresh for the offence of theft and in his reasons he said this:

"Taking into account all factors here I was of the view that a sentence of 9 months was the appropriate one, even after discounts would have been received for the original plea of guilty of the appellant. However I was of the view that as the appellant has completed 39 hours and 30 minutes of the original order, some extra credit should be given for that. Therefore I reduced the sentence by a further two months. Accordingly the appellant was sentenced to seven (7) months imprisonment."

4. Mr Hung on behalf of the appellant complains that that sentence was excessive.

5. The summary of facts of the offence of theft to which the appellant pleaded guilty reads as follows:

"At around 0910 hours on 15.5.99, PW was on patrol at the junction of Nanking Street and Parkes Street, Yamati where he saw D appearing nervously upon seeing police. PW then stopped D for a search and found E1 in the left lower inner pocket of D's jacket. As D was carrying another mobile phone with him, PW questioned D about the existence of E1. D then confessed he picked up E1 in the early morning on the same day at a cooked food stall in Kau Yuk Road, Yuen Long and had kept E1 with him for his own use. PW then arrested D for the above offence. Under caution, deft admitted the offence."

6. With respect to the learned magistrate I am unable to ascertain precisely what starting point in sentence he accepted in this case, but it would appear to be about 13 months.

7. In my view, given the nature of the offence and the fact that it was committed over two years ago, that sentence was manifestly excessive.

8. The appropriate sentence would have been one of 6 months imprisonment reduced to 4 months by reason of the appellant's plea of guilty and to 3 months by reason of the community service completed.

9. I allow this appeal to the extent that I substitute a term of 3 months imprisonment for the term of 7 months imposed by the learned magistrate.