R. v. CHIANG POK WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 589 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of theft. He was sentenced to 15 months imprisonment. He now appeals against sentence.

2. The facts are that the appellant was in the Shatin Racecourse on a racing day. He picked the pocket of a punter. He was then intercepted by a plainclothes officer.

3. He is 36 years of age. He has got five previous convictions and three were similar. The learned Magistrate took into consideration that there was in fact very little mitigation. He applied the case of R. v. Vy Van Kien and Pham Van Hoa [1991] 1 HKLR 422. He considered that the aggravating factor was that the offence was committed in a racecourse. He, therefore, adopted the starting point of 18 months, reducing it to 15 months as a result of the plea.

4. Counsel submitted before me that he had two complaints : one, the starting point was too high and two, not sufficient discount was given for the plea.

5. While I would doubt the wisdom of considering the fact that an offence was committed in the racecourse as an aggravating factor, I think there are good reasons to adopt a starting point of 18 months here. The appellant was convicted of theft in 1988. He was later convicted of two thefts and one attempted theft. For the one theft, he was sentenced to 15 months and for the other theft, 6 months to run consecutively. He had served the sentence. He had not learned a lesson because in 1994, he committed another theft. This time, he was sentenced to 18 months. I think he came out just about in the early part of 1995. This time, it is clear that he had not learnt any lesson neither. The present offence was committed in April 1995. It is likely that it was just a couple months after his release.

6. I would have thought that the starting point of 18 months would be entirely correct. In my view, and I think there are authorities to this effect, the one-third discount would normally be reserved for cases where a defendant has pleaded guilty at the earliest opportunity, that there was some indication of remorse and that the plea was intended to save the court's time.

7. In the present case, he was obviously caught red-handed and there was absolutely no remorse. In the circumstances, I do not think a reduction of 3 months would be too little. There is simply no merit in this appeal. It must be dismissed.