HKSAR v. FOK LING

HCMA439/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.439 OF 2003

(On Appeal From ESCC 666 of 2003)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted on his own plea of an offence of theft.

2. The facts of the case were that the appellant had been seen by police in the early hours of the morning lying under a small goods van on a public street attempting to remove some part of it with various spanners and tools. When spoken to by the police, he admitted he was trying to remove and steal something from it so as to use it on his own vehicle which was in need of such a part. The item in question, I am told today, was some piece of the exhaust pipe assembly.

3. The magistrate adopted a starting point of six months' imprisonment and reduced that to four months given the appellant's plea of guilty.

4. Mr Hon for the appellant does not argue that the sentence of imprisonment, if appropriate, was too severe. But he says that some other form of non-custodial sentence would have been more appropriate, such as, perhaps, a community service order.

5. It may well be that Mr Hon was on quite strong ground in that regard except for the complicating factor that the appellant has two prior criminal convictions for theft. The last of those was in 1994 when he was about 20 years old in respect of which he was made subject to a probation order. The earlier offence was committed when he was a child of 12 years and I ignore that.

6. It seems from the background report before the magistrate that the appellant has indeed led a responsible life since he left probation supervision in 1995.

7. I must say I appreciate the magistrate's concern that the theft of parts from a vehicle in the manner the appellant was attempting poses a risk to the safety of the vehicle and other road users. It is quite simply not known with any assurance what item the appellant was particularly attempting to steal. He says it was a rubber support for the exhaust pipe and that it was for his own vehicle.

8. Having seen the photographs of the two vehicles, i.e. the appellant's and the victimized vehicle, it is true that they are identical and that, to some extent, does support the appellant's contention he was acting more or less on the spur of the moment to get a part for his own vehicle. Even so the theft of parts, particularly mechanical parts, from a vehicle which, in most cases, would occur without the owner's knowledge is a matter which does properly provoke the concerns expressed by the magistrate.

9. The appellant has had chances extended to him before in respect of his conviction of theft. But nevertheless, and without any criticism of the magistrate's sentence, given the appellant's steady family background, his good work history and his relatively light criminal record, I am of the view that he could be given a last chance short of a custodial sentence together with an appropriate rehabilitatory order directed at giving him a better and more disciplined understanding of his community responsibilities. In my view, a community service order, if the appellant is suitable, would be the proper course.

10. Accordingly, this appeal is adjourned for the purposes of a probation officer's report as to the suitability of the appellant for community service to be provided. (The appellant was found to be suitable for community service and the court subsequently ordered that he serve 120 hours community service.)