HKSAR v. WONG SIU PO

HCMA 409/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 409 OF 1999

(On appeal from TWCC 516 of 1999)

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J U D G M E N T

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1. The Appellant was convicted on his own plea at Tsuen Wan Magistracy on the 31 March 1999 of an offence of theft of a mobile phone, contrary to section 9 of the Theft Ordinance, Cap. 210 and of an offence of unlawfully remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. In respect of the theft offence, he was sentenced to 14 days imprisonment and in respect of the unlawfully remaining in Hong Kong offence, he was sentenced to 15 months imprisonment. The sentences were ordered to be served consecutively.

3. The Appellant appeals those sentences on the general ground that they were too severe.

4. The facts of the case were that the mobile phone the subject of the theft offence was taken from its owner at knife-point by a group of three armed robbers late at night in Tsuen Wan on the 13 February 1999. The three robbers then fled and a report was made to the police.

5. In the early hours of the 14 February 1999 in Castle Peak Road at Yuen Long, a group of police officers on patrol stopped and searched the Appellant. They found the mobile phone in his jacket pocket.

6. The Appellant said he had just recently found it on a hillside in Fanling. He said also he had just arrived illegally in Hong Kong by hiding underneath a truck through the Lok Ma Chau Border checking point.

7. Eventually the Appellant was charged with the present offences to which he pleaded guilty.

8. In mitigation, it was put on his behalf before the magistrate that he did not know that picking up and keeping the phone would amount to theft and that he had simply come to Hong Kong "to have a look at the advantages here".

9. In respect of the Theft offence the learned magistrate took a starting point of 21 days imprisonment.

10. In this regard he said:

"In respect of the theft, the offence was committed by way of 'finding'. I considered that a short additional sentence was required. I considered a sentence of twenty-one days imprisonment to be appropriate."

11. Given the circumstances of the theft by finding, no exception can be taken to that starting point of sentence. The magistrate reduced that sentence to 14 days imprisonment to reflect the Appellant's guilty plea.

12. Nothing else was advanced of any significance in the Appellant's mitigation either before the magistrate or before me today. In my view, the sentence of 14 days imprisonment in respect of the offence was appropriate.

13. So far as the offence of illegally remaining in Hong Kong was concerned, the learned magistrate saw no reason to depart from the principles of So Man King, (1989) 1 HKLR 142 and indeed nothing was advanced before him, or before me today, to justify any such course.

14. In my view, the learned magistrate was perfectly correct to order that the sentences in respect of each offence run consecutively to each other. That accords with the principle expressed in R. v. Tam Shek Chuen, A.R. 15/91.

15. There is no basis for the Appellant's assertion that these sentences either individually or as a matter of totality were too severe and his appeals against sentences are dismissed.