HKSAR v. CHAN KIM LUN

HCMA1156/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1156 OF 2005

(ON APPEAL FROM FLCC 1226 OF 2005)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.  He was fined $5,000.  He now appeals his conviction and sentence.

2. The appellant stole a container owned by PW1.  He said that he thought it was abandoned.

Grounds of appeal

3. No specific grounds were put forward by the appellant.  He merely reiterated his evidence at the trial. 

Respondent’s reply

4. The respondent submits that the magistrate had examined the evidence carefully and was entitled to make findings of facts as she did, namely, that the appellant did not hold the belief that the container was abandoned, and in any event he must have realized that the container was not abandoned when he was confronted by PW1 but nonetheless went on with his dishonest act. 

5. The learned magistrate rightly pointed out that the issue was whether or not the appellant actually held the belief that the container was abandoned.  It was irrelevant that his belief was unreasonable.  After evaluating the evidence, she found the appellant did not so actually believe.  She had given her reasons in great detail both in her oral reasons and the Statement of Findings.  She took into account where and how the container was placed and the appellant’s reaction when confronted by PW1 whilst removing the container, as well as what he told PW2, that is the person whom he hired to remove the container from the site with him. 

6. The magistrate was entitled to make the findings as she did.  I saw nothing perverse or unreasonable in those findings.  I would have come to the same conclusion on the evidence.  So, I affirm the conviction and dismiss the appeal against conviction.

Appeal against sentence

7. The appellant says that the fine of $5,000 was manifestly excessive without forwarding any grounds.  However, the magistrate took into account the value of the container which was estimated to be $1,000.  In imposing the fine as she did, the magistrate took into account the earnings of the appellant and the nature of the offence.  She disregarded his previous convictions which were 18 years old and were totally dissimilar to the nature of the present case.  She found that the appellant’s total disregard of the owner’s claim whilst taking away the container was an aggravating feature.  Having considered the factors in their totality, she concluded that a fine of $5,000 was appropriate in the circumstances of the present case.

8. This sentence is indeed a lenient sentence.  Even if the magistrate were to impose an immediate custodial sentence of a short term I would not have disturbed it.  I am not prepared or persuaded to interfere with the sentence passed.  I affirm the sentence and dismiss the appeal against sentence.