HKSAR v. CHENG SEK CHUEN

HCMA43/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.43 OF 2003

(ON APPEAL FROM NKCC 8225 OF 2002)

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J U D G M E N T

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1. The appellant entered a plea of guilty to two charges of theft on 23 December 2002 and was convicted on his own plea by the magistrate. He was sentenced to eight months' imprisonment in respect of each charge with six months of the second charge ordered to run concurrently with the sentence on the first charge, making a total of 10 months' imprisonment. He now appeals against both sentences on the basis that the sentences are too severe.

2. The appellant agreed the facts placed before the magistrate in these terms :

" At the material time and location PW1 was shopping when she felt her handbag containing a telephone was being tampered with. She turned around and saw the defendant running away. She then found the telephone missing from her handbag. She chased up and never lost sight of the defendant. Defendant was eventually subdued by the woman and by a passer-by. A report made to the police, and the policeman arrived and arrested the defendant. Upon a search of the defendant, the phone taken from the woman were found concealed underneath his clothing together with another telephone.

2. Under caution, defendant admitted the offence of pickpocketing from the woman and disclosed that he had obtained the other telephone by pickpocketing from a second woman."

3. The facts were read out to the appellant upon his plea and were agreed by him to be true. He now says that the admission to the police was forced upon him by the police and he says that his admission to the other telephone having been stolen by him was only made to the court and the plea only entered because he believed that he would not receive prison sentences as a result of admitting the offences. It is clear law that if a person for his own purposes and with full knowledge of what he is doing albeit under a mistake as to what the penalty might be who enters a plea of guilty knowingly and without coercion cannot later resile from the plea of guilty and must be dealt with by the trial court on that plea and by any Appeal Court upon his plea of guilty and admission to the facts which supported that plea. He cannot now come forward and say I did not mean that plea and the facts are wrong unless he can show that he entered into that plea under a mistaken fact or because pressure was brought upon him to do so. Neither situation obtains here. The sole matter for me to consider is whether the sentences are wrong in principle or manifestly excessive.

4. The magistrate took into account that the appellant was of clear record, 38 years of age, had been unemployed for two years, had a wife and two daughters and had shown remorse. He further took into account that he entered a plea of guilty at an early stag. He took as a starting point in respect of each offence a period of 12 months' imprisonment. I am referred to the case The Queen v. Vy Van Kien and Pham Van Hoa [1991] 1 HKLR 422, where Penlington JA held that a starting point of 12 to 15 months' imprisonment after trial for pickpocketing offence was correct and that this should be increased where there are such aggravating factors as the use of a weapon or theft in a place where the public is at risk.

5. That judgment was approved by Nguyen J in HKSAR v. Chan Ho Kwai [2002] HKLRD 241 where having analysed the authorities, the judge held that the appropriate starting point for pickpocketing offences was between 12 and 15 months. However the public should be protected where the offences were carried out in particularly crowded places, such as the race course, Lo Wu and other points of departure, and this was an aggravating feature.

6. The magistrate cannot be faulted for taking a starting point in this matter of 12 months' imprisonment. Similarly, the magistrate cannot be faulted for reducing each of the sentences from 12 months to eight months upon the basis of the mitigation put forward by the appellant.

7. Given that each of the sentences is an appropriate sentence, I must consider whether the magistrate in considering the totality of the sentence which he passed upon the appellant was correct when he did so. The two telephones were found at the one time but the takings must have been separate given that they were not taken from the same victim. The magistrate considered whether the totality of eight months making the two sentences concurrent or a partial overlap was appropriate. I cannot say that he was wrong to overlap the sentences and a term of imprisonment for 10 months in all the circumstances of this case was entire appropriate.

8. The appeal against sentence is dismissed.