HKSAR v. NG WAN LUNG

HCMA 853/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 853 OF 2000

(ON APPEAL FROM TWCC 3266 OF 1999)

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of Theft in the Magistracy. He was sentenced by the Magistrate to a period in Detention Centre. There was also a Compensation Order made in terms of section 98 of the Magistrate's Ordinance, that he compensate his victim in the sum of $70,960.00. The appellant appeals both against the Detention Centre Order and also against the Compensation Order.

2. The facts of the case showed that the Appellant tricked his way into the home of a friend and stole quite a substantial quantity of jewellery belonging to the friend's mother. The Appellant agreed that it was to the value of $70,960.00. The jewellery was sold for about $9,000.00 to be melted down and the money was used to buy a second-hand mobile phone and a pager which were later resold.

3. The Appellant had a clear record, although he had been under a Care and Protection Order and the Magistrate sought various reports. The Appellant was allowed to remain on bail pre-trial for a longer period, so that he could make an attempt at restitution but by the time of sentencing, some 21 months after the offence, no restitution had been made. The Magistrate, with the consent of the Appellant, took $10,000.00 from the bail as part-payment of the compensation to the victim and then made a compensation order, which was formulated to take effect after the Appellant had completed his period in Detention Centre.

4. I am quite satisfied having looked at the reports in this case that the Magistrate was correct in imposing the Detention Centre Order. I considered whether it was realistic to impose a fairly large Compensation Order. However, section 98 does not preclude the Magistrate from making an order for compensation together with the Detention Order nor for making it in such a sum, as the maximum for such an order is $100,000.00. The Appellant had the opportunity to make recompense to the victim; he chose not to do so. The Magistrate made proper enquiries into his means and the type of work he was doing, before making the order and before setting the monthly repayments. This was a substantial amount of property lost by the victim and I think it is incumbent on the Appellant to meet the Compensation Order and to face the consequences of what his crime means to the victim.

5. Appellant says that he was not alone in his crime and that he proposes to give evidence against the person who committed the offence with him. However, the Appellant can be ordered to pay compensation of the whole amount and he has the opportunity, if he so wishes, to ask his companion in crime to make a due contribution.

6. The Magistrate was aware of the fact that an order for compensation should not stretch over too long a period and set the instalments to last for a period of 12 months starting from 10 April 2001. I propose to leave the Compensation Order in place and this appeal against sentence is dismissed.