HKSAR v. MD EMRAN HOSSAIN

HCMA 66/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 66 OF 2013

(ON APPEAL FROM KCCC 5073/2012)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The appellant pleaded guilty to one charge of “Going Equipped for Stealing”, contrary to section 27(1) of the Theft Ordinance, Cap 210, Laws of Hong Kong and sentenced to a term of imprisonment for 8 months.

2.  According to the facts to which he admitted, he was seen by a police officer carrying a plastic bag acting furtively.  The police officer followed the appellant into an unguarded building and saw the appellant holding a crowbar on the first floor staircase, which was dropped at the sight of the policeman.  Upon search of the appellant’s plastic bag, the policeman found one handheld electric drill and a pair of pliers.

3.  Under caution, the defendant admitted that the tools belonged to him and that he was about to use them to take away the copper wire.

Ground of Appeal

4.  The only grounds advanced by the appellant at the appeal hearing was that the Magistrate should have taken into account his detention, namely 54 days in 2006 and 51 days in 2012 and gave him further discount accordingly.

Respondent’s reply

5.  Respondent’s counsel informed me that the appellant was administratively detained from 9 December 2006 to 25 January 2007 and between 25 May 2012 to 13 July 2012.  It was submitted that only a period of detention in custody “relating to the offence for which the sentence of imprisonment was imposed” should have been given credit for.  Since the appellant committed the present offence some four months after his release from administrative detention, he is not entitled to be given any discount accordingly.

6.  Counsel also cited to cases (HKSAR v Lam Kin Hung, HCMA 75/2009 and HKSAR v Limbu Hukum Sing, HCMA 93/2008) to show that a starting point of 12 months for the offence of “Going Equipped for Stealing” have been upheld.

My Judgment

7.  The Magistrate gave the appellant the benefit of the doubt by assuming that the premises were deserted.  However, he took a serious view of the offence because “taking away copper wiring of the building is a denial of private property rights and could also pose risk of fire hazards.  It did not derogate from the gravity of the crime”.

8.  He sentenced the appellant on the basis that he had entered into a private premises with intent to steal, and the tool carried in his bag showed a certain degree of planning.  I am of the view that the 12 months starting point was an appropriate one.

9.  Section 67A(1A) of the Criminal Procedure Ordinance, Cap 221 states that:

“The length of any sentence of imprisonment. . . shall. . . be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody.”

10.  It is clear that the appellant’s previous administrative detention has nothing to do with the present offence and thus, the Magistrate is correct not to have discounted those periods from the sentence.

11.  This appeal is dismissed and I affirm the sentence of the Magistrate.