HKSAR v. MCENTEGART, MARTIN CHRISTIAN

HCMA 223/2024

[2025] HKCFI 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 223 OF 2024

(On appeal from ESCC 1239/2024)

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J U D G M E N T

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1.  The appellant was charged with one count of theft of a mobile phone. He pleaded guilty on 10 May 2024. He was convicted on his own plea. He was sentenced to 3 months’ imprisonment and now appeals against that sentence.

2.  He was also ordered to pay compensation of $1,500, which was the value of the phone. On the date of the sentence, the appellant was granted bail for pending appeal.

3.  This was an unusual set of facts. At 5 am on 17 April 2024, the appellant was sat at a high table on 2nd floor of Central Market, eating his food. There was a female sat next to him.

4.  Whilst eating, the victim appeared, carrying his mobile phone. He walked towards that high table. He did not sit down. He put his mobile phone down on the table next to the appellant, and immediately walked away. He did not sit down at any stage.

5.  The appellant, from the CCTV, can be seen to look at the phone, appear to touch the phone, get up, put his jacket on, pick up the phone and run away.

6.  Shortly after, the victim returned and went straight to the table to look for his phone. It was missing, but he did not appear to be upset, frantic or in a panic. The police were called. They later appeared at the 2nd floor.

7.  The victim knew the appellant’s identity and saw him the following day, again very early in the morning, and called the police to have him arrested. Under caution, the appellant frankly admitted committing the offence.

8.  The appellant was represented in the Magistrates’ Court, and Counsel did explain there was a history between the appellant and the victim. Although they did not know each other’s identity, they had often crossed paths and argued.

9.  The victim had a habit of playing music out loud on his mobile phone, loud enough to disturb people around him. The appellant had asked him on several occasions to turn his volume down.

10.  On this occasion, the victim put the phone down next to the appellant once again, playing music loudly. I guess that something in the appellant snapped. He picked up the phone, ran and left the scene before throwing it in the bin.

11.  Counsel on behalf of the appellant urged the court to consider those facts, as well as although the appellant has a previous conviction, it was not for an offence of dishonesty. Moreover, the facts indicate the victim provoked the appellant and he acted out of character.

12.  I have read the reasons for sentence from the magistrate, and he adopted a starting point of 4½ months’ imprisonment. He did not accept the mitigation that the facts of this case were akin to or even less serious than a “theft by finding”. He found it more serious.

13.  He did not accept this submission because the magistrate found, from the CCTV footage, the appellant saw the victim put the phone down and walk away. Knowing it was the victim’s phone, he still disposed of it. Magistrate took the view that this was not opportunistic or in the heat of the moment.

14.  I have been referred to several magistracy appeals where immediate custodial sentences were appropriate. Ms Sham has taken me to several. I will not repeat them.

15.  Starting points of 6 months’ imprisonment are quite normal. I agree with Ms Sham that an immediate custodial sentence would be appropriate for even theft by finding a mobile phone. However, I distinguish these facts from those authorities.

16.  I have looked at the CCTV in question. The magistrate made reference to that CCTV in his reasons for sentence. He, too, could see the appellant sitting at a table and minding his own business at 5 o’clock in the morning. He, too, could see the victim approach, appear to deliberately walk over to the appellant, put his phone down, playing music, right next to the appellant and walk away. A minute later, the appellant decided to take the phone, run away and dispose of it.

17.  The magistrate could see from the CCTV that the appellant reacted to the victim’s provocation. The magistrate agreed that it would appear the victim was playing loud music on his mobile phone even when he put it down on the table and was “trying to irritate the defendant”.

18.  This is not a case of a victim who happened to be sat at the same table, left that table, leaving his phone behind accidentally.

19.  From the victim’s reaction when he returned to the table to his phone being missing, it would appear he was not surprised it was missing. I agree with the magistrate, and it does appear that the victim’s actions were premeditated, deliberate, and in my view, an attempt to provoke a reaction from the appellant.

20.  This should have been taken into account when considering whether the facts are distinguishable from the normal sentencing principles, and whether an immediate custodial sentence was appropriate.

21.  The appellant does have a previous conviction in 2021, but it is not an offence of dishonesty.

22.  Of course, the victim’s provocative actions do not excuse the appellant’s reaction. It was an ill-conceived and rash decision. However, he has admitted at the earliest opportunity that he took the phone belonging to another with an intention to permanently deprive him of that phone.

23.  I allow this appeal, and I allow it on the basis that on the facts, this can be distinguished from the theft of a phone of a stranger, and even a theft by finding.

24.  I allow this appeal on the basis that there was without doubt bad history between the appellant and the victim. The CCTV footage, to me, indicates the victim took it upon himself to provoke the appellant. I suspect he knew the appellant would react, would perhaps damage his phone because of the music blaring unnecessarily from it at 5 am, or even take it.

25.  I suspect he was hoping the appellant would react in such a manner to get him in trouble with the police. I suspect he lied to the police when he said he left it there before leaving to do morning exercises. It made no sense at all. On this basis, the custodial sentence is not appropriate or necessary. I also take into account the appellant has compensated the victim for the full value of this phone.

26.  I repeat, the facts of this case distinguish it from others of a similar nature. Therefore, I will substitute this term of imprisonment imposed below in the magistracy. I substitute it with the following sentence. I impose a 1-month term of imprisonment suspended for 12 months.

27.  Let me explain what the suspended sentence means. A suspended sentence means that you do not immediately have to serve this 1-month term of imprisonment. However, in the next 12 months, if you commit an offence that is punishable by imprisonment, then a court may most likely activate that 1 month, which would mean you would have to serve the 1 month plus any other sentence for the offence you have committed which activates it.