HKSAR v. CHUNQUI VILLASANTE JORGE ANTONIO

HCMA507/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 507 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of two charges by the Magistrate after he had pleaded not guilty. One is Attempted Theft, contrary to s.9 of the Theft Ordinance, Cap.210 and s.159G of the Crimes Ordinance, Cap.200, in that on 30 March 1999 in Mongkok MTR Station, he attempted to steal from an unknown person. He was also charged with going equipped for stealing, contrary to s.27(1) of the Theft Ordinance, in that on the same day and place as stated in the first charge, not being at his place of abode, he had with him an article for use in the course of theft, namely, one razor blade (5 cm long). For the attempted theft, he was sentenced to 12 months' imprisonment by the Magistrate, and for going equipped, he was sentenced to six months' imprisonment, three months of which were made concurrent and the remaining three months consecutive.

2. The Appellant, by his notice of appeal against sentence, set out grounds in support of his appeal in which it is stated that his wife has been sick and has been requiring to be admitted into hospital frequently. Therefore, she has not been able to look after their young children. The Appellant's parents are too old to bear the burden of the whole family although they live together with the Appellant's family.

3. In passing sentence, the Magistrate used a starting point of 15 months' imprisonment for the attempted theft, which was in fact a pick-pocket offence, and he reduced that sentence to 12 months' imprisonment on account of the Appellant's clear record. The Magistrate also considered whether the Appellant's foreigner status would be a material mitigating factor. The Magistrate relied on R v Frank Oweh, Cri App 208/1994 (14 February 1995, unreported), where the Court of Appeal was dealing with a Nigerian having been found guilty of trafficking in dangerous drugs. The Court said at page 5 of the judgment that :

"...We do not consider that the factor of being a foreigner called for any reduction in the sentence passed by the trial judge...."

4. In R v Lorraine Mary Langridge, Cri App 630/1969 (5 September 1969, unreported), Rigby, SPJ, had to deal with a case of trafficking in dangerous drugs by an Australian national. At page 3 of the judgment he said :

"...If a person chooses to commit an offence, likely to involve a term of imprisonment, in a country other than his or her own country, he or she must not be surprised at the consequences that arise form his, or her, unlawful act in that alien country, and is not entitled to expect a more lenient sentence merely by reason of the fact that he, or she, comes from another country or from a different environment."

The Magistrate was certainly correct in rejecting the fact that the Appellant being a foreigner was a mitigating factor in reducing sentence.

5. The matters now set out in the Appellant's grounds of appeal against sentence were not, surprisingly, mentioned to the Magistrate when the Appellant's lawyer was addressing the Magistrate in mitigation of sentence. The main point seems to be that the Appellant's wife has fallen ill and is required to be admitted into hospital frequently. However, when I asked the Appellant when did he know that his wife fell sick, he told me that it was when he called his family just one day before he was arrested that he was told that she fell ill. Therefore, it is clear to me that he knew of his predicament when he committed the offences on 30 March 1999. He committed the offences with his eyes wide open as to the possible predicament he would face if he got caught.

6. Not only do I not believe the Appellant on this mitigating factor, but even if it were true, he had himself to thank for his own predicament. In my view, the sentences passed by the Magistrate were neither excessive nor wrong in principle. I would dismiss the appeal.