HKSAR v. LAU HO MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 237/98

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J U D G M E N T

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1. The Appellant in this matter was convicted after trial of two offences, the first being theft, the second being that of obtaining property by deception. He was sentenced to 9 months imprisonment and now appeals against that sentence. He has submitted that it is manifestly excessive.

2. The background facts are these. The Appellant was employed by a car cleaning company and in the course of cleaning a vehicle he came across a wallet. Inside the wallet was a credit card which he stole. Approximately an hour later, he used that credit card to purchase goods in the sum of $2,260.00. In passing sentence, the Magistrate found that an immediate custodial sentences was unavoidable. Having heard mitigation, the Magistrate considered 6 months' imprisonment was appropriate for the theft of the credit card and a further 6 months was appropriate for the use of that card in obtaining property by deception. The Magistrate then considered the totality of the Appellant's criminal culpability and came to the decision that 3 months of the second sentence should be served concurrently with the first. This made for a total of 9 months imprisonment.

3. In essence, the Appellant has thrown himself on the mercy of this court. He has spoken of his family's pressing need for his assistance. He has also argued that his sentence has been higher than that imposed on others convicted of very similar offences; this, he has said, has given rise to a feeling of grievance on his part.

4. Mr. Wong, who appears for the prosecution, has been unable to assist me with any cases which set a guide line in this matter. It is clear that it is very much a matter of discretion.

5. In his Reasons for Sentence, the Magistrate accepted that the theft was not one that involved a breach of trust. He further accepted that the Appellant had fallen prey to temptation and the theft was not therefore premeditated. He gave as much credit as the circumstances allowed to the Appellant and this was reflected in the sentences he passed.

6. As the Appellant had previous convictions, one for dishonesty which involved a prison sentence, the Magistrate was unable to grant any discount for a previously good character.

7. I am satisfied the sentences imposed were entirely appropriate. The appeal is dismissed.