HKSAR v. LUI CHUN NGAI

HCMA343/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.343 OF 2001

(ON APPEAL FROM KTCC 4306 OF 2000)

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted after trial on one count of theft and two counts of attempted theft. The appeal against conviction has been abandoned. Rightly so because it has no merits at all. Mr Chung appears for the appellant in his appeal against sentence.

2. The facts of this case can be briefly stated. On 28 October 2000, PW1 was sleeping at the Podium Garden of a residential estate. He was woken up by three young men at about 3:30 in the morning. The appellant was one of the three young men. These young men claimed to have lost a mobile telephone a few days previously. They proceeded to search PW1. No mobile phone was found. But PW1 had an ETC card. He was asked for the secret password. He gave it to them. One of the three men then went off to try to withdraw cash from an ETC machine. But because PW1 had no money in his account, that young man returned empty-handed. PW1 was then asked whether he had another account and another password. Eventually, another young man went to try again with a password which was written on a piece of paper in PW1's wallet. But that was however not a password for the ETC card. So, not only was no money withdrawn, the card was retained by the machine. After the three young men left, PW1 found that he had lost a comb. That became the subject of the first count. The two failed attempts to withdraw money became the subject of the second and third counts.

3. The appellant was convicted because his statement to the police clearly linked him with the event which I have described above. He was convicted after trial. He had five previous convictions all involving dishonesty. The sentences passed by the learned magistrate were three months, one year and one year for those three offences respectively. They were ordered to run concurrently.

4. In the Statement of Findings, the learned magistrate said that PW1 was concerned for his safety at the time. And that he felt sure if PW1 had refused to give the password, he would have faced some form of threat.

5. Mr Chung has submitted that there was no evidence to support those conclusions. I believe that they are really common sense conclusions to which the learned magistrate was entitled to come. However, Mr Chung has reminded me on 2 March 2001, when giving his extemporary reasons for the verdict, the learned magistrate had said that the appellant by his conduct "was implying force would be rendered if PW1 refused to co-operate with them, there was", he said "I found another possible inference from this scenario". But in the learned magistrate's Statement of Findings, he said he felt sure that if the defendant had refused, he would have faced some form of threat. Mr Chung had submitted that the two are inconsistent. Although in the one case, the learned magistrate was talking about the possibility of force being implied and in the other case, he was talking about some form of threat. That is, I believe, too fine a distinction to draw.

6. After giving the matter careful and anxious consideration, I have come to the conclusion that there is force in this submission.

7. Mr Chung has also criticized the learned magistrate what he said in paragraph 18 of the Statement of Findings :

"... I noted that if the Defendant had been convicted of robbery and using another person's ETC card in an attempt to steal money from an ETC machine, the sentence would have likely been within the District Court jurisdiction."

That Mr Chung has submitted is wrong because of course the appellant was not charged with robbery or attempted robbery.

8. Mr Madigan, who appeared for the prosecution, has conceded that it was unfortunate that the magistrate spoke of robbery in his Reasons for Sentence. And that there was absolutely no evidence of robbery in this case. But I do not believe that the learned magistrate sentenced the appellant as if he had been convicted of robbery or attempted robbery. What the learned magistrate was doing, was to emphasize the fact that these offences in the words of the learned magistrate "were more serious than a simple theft of money or property". It was in that context that he referred to robbery. The conduct of the three young men in this case might well have developed into a case to robbery. It did not. The appellant was not charged with robbery or attempted robbery and I am sure that the learned magistrate did not sentence him on that basis.

9. Mr Chung had also submitted that the learned magistrate had failed to take account of the fact that the appellant could not have stolen any money because there was no money in PW1's account. He has referred me to the case of R v. Wu Man Hon & Ors [1993] 2 HKC 267. That was a case where the defendant was charged with conspiracy to rob. And the facts of the case were described by the Court of Appeal as extraordinary. That was a case where there was in fact no gambling den to rob although that was the subject of the defendant's conspiracy to rob. But I do not read this case as authority that in a case such as the present one, where the defendant was charged with and convicted of attempted theft, the fact that there was no money in PW1's account should make any substantial difference.

10. So I have to consider whether the sentence passed could be said to be excessive. Taking everything which has been said on the appellant's behalf, I am bound to say, that were I required to sentence the appellant myself, I would still have sentenced him to a total term of 12 months' imprisonment. That being the case, the only thing for me to do is to dismiss this appeal. In doing so, I have given careful consideration to its background. But on the facts of this case : the theft and attempted theft took place in the middle of the night by three young men against a person who was sleeping in the Podium Garden in the estate in which he lived, a substantial custodial sentence is justified. So the appeal is dismissed.