HKSAR v. DENG WENXUE

[English translation – 英譯本]
HCMA 121/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 121 OF 2012

(ON APPEAL FROM KCCC NO. 4853 OF 2011)

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J U D G M E N T

1. The appellant pleaded guilty to the following two charges at the Kowloon City Magistracy:

      Charge (1): Attempted theft;

      Charge (2): Going equipped for stealing.

2. According to the Conviction Where Punishment Is By Imprisonment. No Costs (Form 24), which was signed by the Deputy Magistrate (“Magistrate”), the appellant was sentenced to the following terms of imprisonment:

      Charge (1): 12 months;

      Charge (2): 4 months.

These two terms were to be served concurrently, making a total of 12 months’ imprisonment.

Facts

3. The incident occurred on Hankow Road, Tsim Sha Tsui. The victim put an iPhone 4 into a paper bag, connected the earphones to the mobile phone and listened to music.  The appellant attempted to take away the phone but was discovered.

4. When the appellant was put under arrest, a police constable found a pair of 25cm long forceps concealed in the wristlet worn on his left forearm.

Sentences

5. In this case, what is being challenged is the length of the sentences.

6. According to Form 24, the sentence for charge (1) is 12 months, that for charge (2) is 4 months and the total sentence is 12 months.

7. When the Magistrate pronounced the sentences in court, he said:

“Yes, thank you very much. I accept the mitigation submission made on your behalf by your counsel. Let me tell you. If you come to Hong Kong for sightseeing, then go sightseeing. You should not come here to commit any crime. We welcome visitors of whatever nationalities to come here sightseeing, touring and shopping. However, if any visitor comes to Hong Kong with the intention to commit any crime, the court surely will not shut its eyes to that.

Charge (1), 12 months’ imprisonment. This one, following a plea of guilty, there is a one third [discount]. This is so according to the guideline. I don’t see any circumstances which warrant any additional discount.

    Then, charge (2).  I adopt six months as the starting point.  One third [discount], so it is four months’ imprisonment.  As far as the facts are concerned, you had not in any way used the instrument involved in charge (2), therefore it shall run concurrently.  The total is 12 months’ imprisonment.  Alright, thank you.”

8. In the Reasons for Sentence the Magistrate explained:

“When I passed sentence orally, first I said the two sentences were to run concurrently, but subsequently I said twelve months’ imprisonment. It was a slip of the tongue. The total sentence should be eight months’ imprisonment. As far as this point is concerned, the appeal should be allowed.”

Grounds of appeal

9. The grounds of appeal, as set out in the Perfected Grounds of Appeal signed by Tam, Pun & Yipp, are:

(1)  The 12 months’ imprisonment is only a slip of the tongue on the part of the Magistrate.  The total sentence originally intended by him was eight months.  The Magistrate admitted this point in his Reasons for Sentence.

(2)  In any event, the total term of imprisonment of 12 months is manifestly excessive.

Respondent’s submission

10. Senior Public Prosecutor Ms. Peggy Leung, for the Respondent, advanced the following arguments:

(1)  The Conviction Where Punishment Is By Imprisonment. No Costs (Form 24), which was signed by the Magistrate, in fact accurately conveys the original intention of the Magistrate.  In passing sentence, the Magistrate said:

“Charge (1), 12 months’ imprisonment. This one, following a plea of guilty, there is a one third [discount].”

Before that, the Magistrate said,

“I’ve explained that usually the starting point after a guilty plea to what we called pickpocketing is 12 months.”

Ms. Leung submitted that Form 24 conveys the Magistrate’s original intention.  It is only that when the Magistrate was writing out his Reasons for Sentence, for some unknown reason, he changed his mind.

(2)  Once the Magistrate signed the Form 24, he became functus officio and could not use the Reasons for Sentence to change the sentences already passed.

(3)  The total sentence of 12 months is an appropriate reflection of the seriousness of the present case.  It is not manifestly excessive.

Discussion

11. My view is that from what is recorded in the transcript, it cannot be said that the Magistrate’s remarks made during the passing of sentence do not support the first argument of Ms. Leung.  However, it is not absolutely clear.

12. The content of the Form 24, which the Magistrate signed subsequently, is no different from what he said in court.  This, to a certain degree, strengthens the first argument.

13. In the Reasons for Sentence, the Magistrate came straight to the point and clearly stated that when he passed sentence orally he made a slip of the tongue, that the total sentence should be eight months’ imprisonment and that the appeal should be allowed.

14. That this should have happened is highly unsatisfactory.  However, the Magistrate explained this matter in such explicit terms that there is no room for the suggestion that what really happened was only that he subsequently changed his mind, nor is there any reason to suspect that what the Magistrate said in the Reasons for Sentence is not true.

15. Therefore, I think that this appeal should be considered on the basis that the total sentence originally intended by the Magistrate was eight months.

16. Ms. Leung pressed the point that under section 119 of the Magistrate Ordinance[1] I have the power to confirm the sentences stated in the Conviction Where Punishment Is By Imprisonment. No Costs (Form 24), and particularly so if the sentences are appropriate ones.

17. The reasons for her submission that the total sentence of 12 months is appropriate are as follows:

(1)  This is a case of what is commonly known as pickpocketing, even without the following aggravating features, the starting point should be 12-15 months;

(2)  The offences were committed on a busy street;

(3)  A pair of forceps, being an instrument for committing crimes, was concealed on his forearm;

(4)  He came to Hong Kong on the strength of a two-way permit and committed the offences on the very first day of his arrival.

18. There was no clear evidence before the Magistrate as to whether the offences were committed on the very first day of the appellant’s arrival in Hong Kong, but it was undisputed that he was a visitor to Hong Kong and further, he had on his person an instrument for theft.  It is obvious that his commission of the offences was premeditated.  These are factors which the court can consider when sentencing.

19. In the absence of evidence, it is difficult to determine whether the scene of crime was a busy street, though it was certainly not a quiet place.  However, it is not necessary to regard this particular scene of crime as an aggravating feature because, after all, the place in question can hardly be mentioned in the same breath with places like a street in Mongkok, a racecourse or the interior of a railway carriage.

20. Having considered all the circumstances, I come to the conclusion that even though the appellant was a first time offender, the 12 months starting point adopted by the Magistrate is lenient.

21. In relation to appeal against sentence in a magistracy appeal, section 119 of the Magistrates Ordinance confers the following powers on a judge who hears the appeal:

“(d) the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;

(e) the powers of the judge under paragraph (d) shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded;”

22. I accept Ms. Leung’s argument that I have the power to confirm the sentences recorded in the Conviction Where Punishment Is By Imprisonment.  No Costs (Form 24), even if they do not convey the original intention of the Magistrate.

23. After careful consideration I am not prepared to do so, because although the sentences passed by the magistrate are lenient, it is not a case that there is injustice unless the court intervenes to put things right.

24. For the above reasons, I order that the term of imprisonment for charge (1) be changed to eight months[2], and to this extent the appeal is allowed.

25. In my judgment, a term of four months[3] is appropriate when charge (2) is considered individually.

26. As to whether the sentences of these two offences should run concurrently, it depends on whether the aggravating feature that the appellant was well prepared for the commission of the offence in charge (1) had been taken into account in passing the sentence for charge (1).  The overall sentence should reflect the overall culpability of the two offences but the offender should not be punished twice for the same conduct[4].

27. The basis of the Magistrate’s consideration in passing sentence was that the instrument for theft had not been used.  In addition to that, the starting point which he adopted for charge (1) was on the low side.  I am sure that he did not treat the fact that the appellant had brought along an instrument for committing the offence as one of the sentencing considerations of this charge.

28. That being so, I conclude that it is appropriate to order that part of the sentence of charge (2) be served consecutively to that of charge (1).  Only in this way can the overall seriousness of this case be shown.

29. For these reasons, I order that two months of the sentence of charge (2) be served consecutively to the sentence of charge (1).  I believe that this order is just.

30. In conclusion, the sentences imposed on the appellant are as follows:

Charge (1): 8 months’ imprisonment

Charge (2): 4 months’ imprisonment

Two months of the sentence of charge (2) shall run consecutively to the sentence of charge (1), so that the total sentence is 10 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.