HONG KONG SPECIAL ADMINISTRATIVE REGION v. TSE Wai-keung

IN THE HIGH COURT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 446 OF 1997

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R E A S O N S  F O R  D E C I S I O N

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The Appellant pleaded guilty to one count each of theft and attempted theft and he was sentenced to a period of 12 months' imprisonment on each charge. The learned magistrate ordered that the sentences were to run consecutively.

2. There are three grounds of appeal, the first being that the learned Magistrate failed to state a starting point and he did not indicate the discount given for the plea of guilty. He was also criticized for not identifying whether there were any mitigating factors in the case. Time and again this court has indicated that when passing sentence the sentencer should indicate the appropriate starting point, and from that starting point he should have indicated the discount he had given for the plea of guilty and on other mitigating factors. if any.

3. Regrettably, the learned Magistrate did not adopt this approach nor did he appear to have considered the totality principle when he ordered the sentences to run consecutively. The issue remains whether the sentence he passed was manifestly excessive? Purely on the assumption that he had adopted a starting point of 18 months and giving it the usual one-third discount, he would have arrived at the present figure of 12 months.

4. In view of the nature of the offence, I cannot criticise the sentence as being manifestly excessive when the learned magistrate adopted the assumed starting point. What concerns me is the learned Magistrate's failure to consider the totality principle. Had the Defendant not been entitled to discount, he would have to serve a total prison term of 36 months, and this would have been outside the learned Magistrate's jurisdiction. In my view, the Magistrate was wrong in not having given regard to the totality principle.

5. For the reasons given, the appeal against sentence is allowed to the extent that six months of the second sentence of 12 months is to be served concurrently with the first sentence of 12 months, and the balance to be consecutive.