HKSAR v. MAN HON SUM

HCMA 545/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 545 OF 2004

(ON APPEAL FROM STCC 1299 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. The Appellant had pleaded guilty to one charge of theft, one charge of possession of dangerous drugs and one charge of failing to surrender to custody. He was sentenced to a Drug Addiction Treatment Centre for all three charges and he now appeals against that sentence.

2. The facts show that on the date of the offence, the Appellant together with his co-accused was seen coming out from a Welcome Supermarket. In the bag held by the Appellant were found three cakes, and two packets of red bean dessert with a total value of about $30.00. And on his body was also found a phial containing 0.04 grammes of methadone and when the Appellant was cautioned, he said that he had stolen the cakes because he was hungry and the methadone was for his own use.

3. And in mitigation, it was submitted by counsel for the defence that the methadone was what he had been given at the methadone centre but he had drunk only part of it and kept part of it for later consumption. On 4 September, the Appellant had been granted bail to reappear in court on 24 October, but he had failed to surrender to custody as appointed and that gave rise to the third charge.

4. The Appellant, at the time of the sentence, was already serving a term of imprisonment i.e. four months' imprisonment in another case. And the learned Magistrate after obtaining Drug Addiction Treatment Centre report, thought that she could sentence the Appellant to a Drug Addiction Treatment Centre and that this Drug Addiction Treatment Centre detention was to take place after he had finished serving the four months' imprisonment in the previous case. It is clear that this was wrong in principle and therefore this sentence cannot be upheld. Mr Wong for the Respondent has properly conceded that.

5. So the only question remaining for me to decide is the appropriate sentence in this case. First of all, I have to say I am not bound by the learned Magistrate's opinion on the proper sentence as she had written in paragraph 11 of her Reasons for Sentence. I have to look at the facts anew and consider what is the appropriate sentence.

6. As I have noticed in this case the theft was of food items and they are in the region of about $30.00 value. Mr Lo has very properly conceded that the sentences that the learned Magistrate had suggested for possession of dangerous drug of one month; and for failing to surrender to custody of two months reasonable and therefore he does not wish to argue against those two sentences. But he submit that the learned Magistrate's view that three months' imprisonment was appropriate for the theft charge is too severe in the circumstances apart from the fact that the co-accused was only sentence to three days imprisonment. We have to look at the nature of the goods taken, and the overall circumstances.

7. Mr Lo has suggested that the starting point for the first charge should be one or six weeks and with one third discount for his plea of guilty, the sentence should be four weeks. And therefore if the sentences were being served consecutively, it would bring a total of four months' imprisonment.

8. I must say that I do agree with Mr Lo. I think a starting point of six weeks' imprisonment for the theft charge is reasonable in the circumstances. We do not know why the co-accused was sentenced to three days but a court when assessing sentence is not necessarily bound by the sentence of the co-accused if the sentence is inappropriate or too light in the circumstances, as Mr Wong pointed out, we do not know the circumstances or what was said in mitigation on behalf of that particular accused. Mr Lo has very correctly not submitted to this court that I should follow that three days' sentence.

9. As I have said I find that Mr Lo's suggestion is a reasonable one, so I therefore sentence the Appellant to four weeks' imprisonment on the first charge, one month imprisonment on the second charge and two months' imprisonment on the third charge and this will all be served consecutively thus making a total of four months' imprisonment and therefore the appeal against sentence is allowed and the Appellant is sentenced to a total of four months' imprisonment for all three charges.

10. This sentence will be served consecutively to the sentence he is now serving.