HKSAR v. RAVI DASS GURNAM SINGH

HCMA 777/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 777 OF 2012

(ON APPEAL FROM TMCC 3031 OF 2012)

____________________

BETWEEN

____________________

----------------------

J U D G M E N T

-----------------------

1.  The Appellant Ravi Dass Gurnam Singh pleaded guilty to one charge of making off without payment and one charge of theft before Deputy Magistrate T C Chong Esq, and was sentenced to imprisonment for 1 week and 4 months to run concurrently. He is appealing against the sentence.

2.  The 1^st charge stated that he dishonestly made off HK$268.5 with intent to avoid paying the taxi fare, and the 2^nd charge was that he also snatched the mobile phone from the taxi driver.

The facts

3.  On the day in question, the Appellant travelled on PW1’s taxi with his female partner.  The lady was let off first.  When the taxi stopped before a red light, the Appellant suddenly alighted and fled.  The taxi driver gave chase and demanded for the taxi fare.  The taxi driver wanted to call the police, but the Appellant threw a punch and snatched his mobile phone and ran.  The taxi driver further gave chase and subdued the Appellant following a short struggle.  The taxi driver suffered a small abrasion to his right knee which did not require treatment.  Upon arrest, it was found that the Appellant had no money on him.  The Appellant said he was drunk at the time, and he committed the offences out of fear of arrest.

Reasons of the Magistrate

4.  The Appellant was 27 years old and he came to Hong Kong in 2006, and he filed a torture claim.  He was not allowed to work during his stay in Hong Kong.  He had 9 previous convictions, 5 of which related to the similar offence of theft, and one related to dangerous drugs.

5.  The Magistrate referred to the tariff of 12 months imprisonment for pickpocketing in HKSAR v Fan Yau Chit HCMA 567/2002.  He said in principle snatching can be compared with pickpocketing, but the Appellant had acted out of fear, albeit having confirmed with defence counsel that the elements of theft were all satisfied.  The Magistrate adopted a starting point of 6 months for the theft, and gave 1/3 discount for plea.  The sentence for the making off was 1 week concurrent as it arose out of the same incident.

Grounds of Appeal

6.  The Appellant said his wife should have given birth to their child around this time, but he had lost contact with her as no one answered the phone.  He wanted to be released as soon as possible notwithstanding that his expected date of discharge is only a few days away on 4 December 2012.

Discussion

7.  The Magistrate referred to the pickpocketing tariff but adopted a starting point much lower than the 12 to 15 months. One of the rationale as to why pickpocketing offences were serious is the inconvenience on the victim in having deprived of identity and other credit cards in the wallet. The same rationale should apply to snatching a mobile phone where present technology allows the storage of large amount of personal data in the phone.  The sentence of 4 months’ imprisonment is neither wrong in principle nor excessive. 

8.  There is another matter in relation to a suspended sentence not activated by the Magistrate.  On 8 March 2012, the Appellant was sentenced to 14 days imprisonment suspended for 15 months in respect for a possession of dangerous drugs offence.

9.  About a month later on 12 April 2012, the Appellant was sentenced to 10 days’ imprisonment for another charge of theft, but the suspended sentence was not activated on that occasion.

10.  When the Appellant appeared before Magistrate Chong, the prosecution informed his Worship of the suspended sentence.  The Magistrate did not activate the suspended sentence because there was some period of time between the two cases, and they were not similar offences.

11.  Under section 109C(1) of Criminal Procedure Ordinance, Cap 221:

“(1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods -

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;
(b) it may order that the sentence shall take effect with the substitution of a greater or lesser term for the original term;
(c) it may by order vary the original order under section 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or
(d) it may make no order with respect to the suspended sentence

and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.”

12.  Mr Tsang, for the Appellant, agreed that the Magistrate has not complied with section 109C(1) and this Court has all the power to deal with the matter afresh.

13.  The Appellant has already been given a chance of not having the suspended sentence activated under his conviction for theft in April this year.  He was asked why he should yet be given a second chance this time round.  His reason is that he wanted to find out the state of his wife as soon as possible. 

14.  The offence in April was one of theft similar to the one which the Appellant is receiving the 4 months’ imprisonment here. There is nothing unjust and fact it is compelling that the suspended sentence should be activated.   

15.  Hence, the appeal against the 4 months imprisonment is dismissed, but the suspended sentence of 14 days in respect of dangerous drugs conviction is activated unaltered.