HKSAR v. WONG KA CHUN

HCMA 1131/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1131 OF 1998

(On Appeal from ESCC No. 3717 of 1998)

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of handling stolen goods. He was sentenced to 9 months' imprisonment. He now appeals against the sentence.

2. The Appellant ran a telephone stall selling mobile telephones. He purchased 47 stolen telephones from 8 main-landers who were alleged to have conspired to steal those telephones.

3. The Appellant is now 26 years of age, married with a young child. His wife and child depend on him, so are his parents. His wife apparently becomes physically disabled and emotionally fragile as a result of an accident that occurred not long ago.

4. It is suggested that an immediate imprisonment against the Appellant would create huge difficulties for his family; his business will suffer and the mortgage liability may not be met. It is also suggested that the impact of an immediate custodial sentence on the wife can be serious.

5. The learned magistrate adopted a starting point of 18 months' imprisonment. He reduced it by 50% by reason of the Appellant's guilty plea, his family background and his relatively good character.

6. I agree with the comment of the learned magistrate that the offence in question is very serious. As he quite rightly pointed out, without the assistance of people like the Appellant, those who stole telephones would have difficulty in disposing them. In that regard, it is also worth mentioning, as the learned magistrate did, that the theft of mobile phone was a prevailing offence.

7. People who sold the 47 mobile telephones to the Appellant clearly were members of a syndicate engaging in the business of stealing. It is also right to say that if the Appellant chose to assist thieves by purchasing stolen goods from them, he only had himself to blame.

8. I must state at the outset that the sentence of 9 months' imprisonment is by no means excessive or wrong in principle. On the other hand, I think it will be wrong in this case for me not to take into consideration the impact of the sentence on his family, particularly his wife who is under some degree of disability and his young son.

9. Having heard counsel's submission and having looked at the entire background of this matter, particularly the background of the Appellant's family and everything that have been said in the probation officer's report which can be described as quite favourable, I am persuaded that, this is one of those rare cases that the court can tamper justice with mercy.

10. I am taking a rather unusual step for the present offence by agreeing to suspend the sentence imposed by the magistrate. I am properly making a mistake but I am persuaded that in this particular case, it is the correct step to take. The Appellant must not take this as an encouragement because if he were to commit any other offence again in the future, he can be assured that no mercy whatsoever will be shown by any court.

11. In respect of the offence to which the Appellant had pleaded guilty, the sentence of 9 months' imprisonment will stand but it will be suspended for a period of 2 years. The Appellant also has to pay a fine of $20,000. The fine of $20,000 is to come out of the bail money.

12. The appeal against sentence is allowed to the extent as I have indicated.