HKSAR v. WONG YUN

HCMA309/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.309 OF 2003

(ON APPEAL FROM NKCC 1469 OF 2003)

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J U D G M E N T

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1. The appellant in this case pleaded guilty to a charge of illegal remaining in Hong Kong but denied one charge of theft. He was convicted of the theft charge after trial. He now appeals against his conviction in relation to the theft charge only and sentenced in respect of both charges. For the theft charge, he was sentenced the 12 months' imprisonment, for the illegal remaining charge 15 months' imprisonment. The trial magistrate had ordered that six months out of the theft charge to run consecutively to the illegal remaining charge.

2. The facts of the case are simple and straightforward. The appellant was alleged to have snatched PW1 of a necklace and fled. PW1 gave chase, pointed up him out to two police officers. The appellant was eventually stopped. The necklace of PW1 was found on his person. Upon investigation it was found that the appellant had entered in Hong Kong illegally.

3. Obviously, in relation to the theft charge, the main issue is the identification of the appellant by PW1. It was not disputed that the appellant was the one arrested by officers who gave chase, and there was also no dispute that the appellant was found to be in possession of PW1's necklace. According to PW1, she had a good look at the appellant at the time of snatching. She had kept him under observation throughout her chase. She had never lost sight of him. Whilst recognizing that this was not a "fleeting glance" situation, the magistrate had nonetheless given himself the necessary warning. He rejected the evidence of the appellant and found that PW1 was an honest and credible witness. He was entirely entitled to make such findings of facts and came to the conclusion as he did. There is nothing in this appeal against conviction. The appeal against conviction fails. I affirmed the decision of the magistrate.

4. In respect of the appeal against sentence, 15 months' imprisonment imposed on the appellant in respect of the illegal remaining charge is entirely proper on a plea and within guideline laid down in existing authorities. It is also settled that for pickpocketing offences or snatching offences, a starting point of 12 to 15 months' imprisonment is appropriate. The magistrate has already adopted the lower end of this scale as a starting point and he was correct in refusing to give the appellant any discount for the theft charge as the appellant was only convicted of this charge after trial.

5. The magistrate had rightly taken into account the totality principle and imposed a partially consecutive sentence. I dismiss the appeal against sentence as well.