HKSAR v. PANG YAJIANG

HCMA 1112/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1112 OF 2003

(ON APPEAL FROM NKCC 7226/2003)

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J U D G M E N T

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1. This Appellant was convicted after trial of one count of Theft and sentenced to 15 months' imprisonment. He now appeals against conviction and sentence on the ground that there was no evidence to support the conviction and that the sentence was too severe.

2. The facts show that the Appellant went to a shop indicating he wanted to buy a quantity of expensive telephones. He purported to purchase 15 telephones and gave the salesman cash, totalling $40,300.00, in payment. The salesman counted the cash in front of the Appellant. Subsequently the Appellant took the cash and recounted the money. Using sleight of hand he then returned a pile of money which, by this stage, totalled only $6,300.00. The Appellant meanwhile fled with the phones. He was chased and stopped by the salesman and the salesman's boss. When stopped, he took out the missing $34,000 from his pocket and demanded that he be released.

3. He was represented at trial and the basis of his defence was that the whole incident arose from a misunderstanding with the salesman. However, the Magistrate was fully aware of the elements of the offence and the case turned on the credibility of the witnesses. The Magistrate was satisfied that the Appellant had stolen the $34,000. There is no basis for disturbing the conviction.

4. In respect of sentence, the Magistrate took into account that there is no sentencing tariff for this type of theft. However, he referred to a case which was rather similar: R v. Vargas Penuela Humberto Daniel & another, HCMA 1222 of 1995 where the Court held that 12 to 15 months starting point for this type of shop theft was justified. In that case, the appellants who were Columbians, had gone to a jewellery shop pretending to be customers, distracted the attention of the salespersons and stole a diamond and gold watch. The facts were very similar to this particular case. The Appellant was here on a valid two-way permit from China.

5. Today, the Appellant said that he did not realize that he had been given a sentence of 15 months. He has an aged mother with no one to look after her. His wife is in hospital with sclerosis of blood vessels of the brain. He has four children who are not in school and have no one to look after them. He produced documents which appear to be a medical certificate, a photocopy of his wife's identity card, a copy of his marriage certificate and a letter from the authority in his home town, saying he has not committed any offence there in the past.

6. The Magistrate was aware of these matters, including the fact that the Appellant had a clear record in Hong Kong. I can see no reason to disturb the sentence which is entirely proper in the circumstances. The appeal against conviction and the appeal against sentence are dismissed.