R. v. LEUNG KAM WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.692 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to an offence of attempted theft. It was a pickpocketing offence.

2. On 4th August 1994 at 9:30 am, he was on the platform of Lo Wu Station and he tried to steal a travelling bag from a Japanese male who happens to be resident in Hong Kong. The appellant was caught and arrested. He eventually pleaded guilty, but not until after he had failed to appear at trial when he was first required to do so. He said that his wife in China had left him and he had children to look after. He is not a person of good character. He has two previous convictions, one for pickpocketing, which are stale. The second is dated 20th June 1984.

3. The magistrate took a starting point of 15 months and reduced it to 12 months because of his plea. In principle and on the facts which the magistrate had before her, this sentence was neither objectionable in principle nor manifestly excessive. A starting point after trial for offences in places like the platform of Lo Wu Station is about 15 months.

4. It is accepted today that the appellant surrendered voluntarily on his return to Hong Kong in 1996. He tells me that he came back specifically for this purpose and there is no evidence to suggest otherwise. I have been very reluctant to reduce the sentence because by doing so one would be giving credit to people who have absconded, did not appear at trial and then voluntarily came back. That would have to be discouraged. On the other hand, this appellant has today described to me his family circumstances and has also addressed me in a way which causes me to accept that he is remorseful for what he has done. Those who have appeared before me in the last couple of weeks would know that I am generally disinclined to accept tales of woe put to me as they very frequently are by those who come to Hong Kong from other jurisdictions and then complain that their families at home are in dire straits. This appellant is facing a family situation which arose since the offence by which it is said that there is no one properly to look after his children saved an unidentified relative and he also put forward to me matters which convince me of his remorse. In the very unusual circumstances of this case, I am going to slightly reduce his sentence to one of 10 months imprisonment but I must emphasise that this turns on the peculiar facts of this case.