HKSAR v. CHO CHING CHING

HCMA 207/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 207 OF 2008

(ON APPEAL FROM KCCC 382/2008)

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J U D G M E N T

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1. This is an appeal against sentences of imprisonment totalling 12 months.

2. On 13 January of this year, a shopkeeper saw this appellant attempting to steal from his meat shop.  The appellant was chased and caught, and brought back to the shop.  It was there that he picked up a hammer, and he has pleaded guilty to an assault occasioning actual bodily harm and to a common assault upon the shopkeeper and another person there.

3. The brief facts, which were admitted below, are very sketchy when it comes to describing the assault, but they relate this:  that the hammer was picked up from the ground and brandished to keep the two men at bay.  It says that PW1 and PW2, the two men who were injured, sustained injury as a result.  That does not tell me a great deal about what happened, but the pleas of guilty acknowledge unlawful violence.

4. In the case of one man, it caused tenderness and redness of his left elbow.  That was the person who was the victim of the common assault.  The man who sustained actual bodily harm had redness and swelling of his left forearm.

5. After the appellant had been arrested, CCTV footage was reviewed, and that showed him in the store on two previous occasions; once on 3 January, once on 8 January.  On those days, he was to be seen stealing packets of abalone.  He pleaded guilty to those thefts.

6. The appellant is a man who has been before the courts for offences of dishonesty starting as long ago as 1982.  He is 49 years of age.  His last sentence was for theft when, in 2005, he was sentenced to 12 months’ imprisonment.

7. The sentences overlapped, but basically, the magistrate took 6 months’ imprisonment as the starting point for the offences of dishonesty and reduced them according to the pleas.  He took starting points of 6 months for the actual bodily harm and 3 months for the common assault.  Those individual sentences cannot be criticised.  The real question is what should the right total be, and even though the unrepresented appellant today has addressed me very nicely, I regret to tell him that my view is that the sentence of 12 months for all that he did was not a day too long.  His regular offences of dishonesty in the past plus repeatedly stealing from the same shop, by itself, would have attracted a sentence getting on for a year.  Add to that the unlawful violence, and the total of a year was modest.

8. The appeal against sentence is dismissed.