HKSAR v. GREGORY JAMIE MCKAY

HCMA 645/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 645 OF 2014

(ON APPEAL FROM KCCC 3352 OF 2014)

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J U D G M E N T

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1. The Appellant was convicted of theft upon plea and sentenced 2 months imprisonment. He is appealing against his sentence now.

Brief Facts

2. The Appellant patronized a sex worker and he paid her some money.  After the act, she went to refresh herself and the Appellant took the money back.  It was discovered by the sex worker and she stopped the Appellant from leaving.  She called the police and the Appellant was apprehended by the police.

Mitigation and Sentence 

3. The Appellant is a British citizen and has worked in Australia and New Zealand.  He became unemployed when the company folded and came to Hong Kong to look for opportunities.  He has no criminal record, and has done charitable works after graduating from university. 

4. The Magistrate was also told that the Appellant was drunk at the time.  He had alcohol which reacted with the medication for depression, and hence he acted out of character. 

5. The Magistrate referred to HKSAR v Lai Kwok Fai CACC 346/2008 where the Court of Appeal stated the principle that sex workers are vulnerable targets for robbers, and deterrent sentences should be passed for their protection. 

6. The Magistrate also referred to HKSAR v Lai Ka Lun, HCMA 1025/1999, SJ v Lau Yun-leung CAAR 3/1999 which stated self-induced drunkenness count for little or no mitigation in cases of specific intent. 

7. The Magistrate adopted a starting point of 3 months’ imprisonment, and reduced it to 2 months upon a plea of guilty.

Grounds of Appeal

8. The Notice of Appeal stated the sentence was too severe.

9. The Appellant applied for an adjournment to prepare for the appeal himself.

10. The Appellant was sentenced on 7 October 2014 and he filed the appeal on the same date.  He was notified of today’s hearing on 8 November 2014.  His expected date of discharge is 14 November 2014, which is only 3 days away.  The appeal is academic but the Appellant felt the Magistrate had erred and he wanted the matter put straight on appeal. 

11. Three points were made.  First, the Appellant said it was not a case of self-induced intoxication because the alcohol had reacted with the medication.  Nevertheless, it was not a case of a laced potion and he should not have drunk alcohol while on medication. 

12. Secondly, his defence counsel submitted a case of a lady with a good education background stealing a mobile phone and the sentence was suspended.  There is an important distinction between just stealing someone’s mobile phone and getting the money back from a sex worker who has just performed the service.  The Appellant said he was not a robber but the principle of deterrence against bullying a vulnerable female is all the same.

13. Thirdly, the Appellant stressed the mitigating factor of his good character and background.  The most important and starting point in looking at sentence is the offence itself.  The offence is very serious.

14. The Magistrate was neither wrong in principle in adopting a custodial sentence, nor was it manifestly excessive.  But I do see that little weight has been placed on the fact that the Appellant did stay behind to wait for the police, which having looked at his body built, there is no doubt that he could have forced his way out had he minded to do so, which shows there is some remorse in the matter. 

15. The fact remains that the Appellant has already served most of the sentence, and what I shall do now is to replace it with one which will allow his immediate release.