HKSAR v. BALJIT SINGH

HCMA 98/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 98 OF 2014

(ON APPEAL FROM KCCC 3568 OF 2013)

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J U D G M E N T

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1.  This is an appeal against a sentence of 14 months’ imprisonment passed for an offence of theft. 

2.  The facts of the offence reveal that the offence occurred shortly after the Appellant had finished utilising the services of a “one-woman prostitute”; the victim in the case.

3.  The Appellant had paid for the victim’s services and was in the process of leaving her apartment when he became aware that she was standing at the door of her apartment wearing only a bath towel and holding a mobile telephone in her hand.  The Appellant, as he left the apartment, snatched the mobile telephone from the hand of the victim and ran off.

4.  The Appellant was chased by the victim who yelled out to members of the public and he was caught and the mobile telephone, valued at $2,700 was recovered.

5.  The Appellant was a man with a clear criminal record, he was 36 years of age, married with two sons.  He had been working and, indeed, the social inquiry report that was obtained revealed that until the age of 36 he had had led an honest and industrious life.  The worst that could be said of him, and that by his wife, was that he drank too much.

6.  There is no set tariff for cases like this, though it is fairly common ground that sentences in the region of 12 months are where courts might start.  Indeed, in a case that has been referred to me called HKSAR v Yeung Kam Tung, which is CACC 427/2012, one finds a recent example of the Court of Appeal looking at 12 months as an appropriate starting point for snatching someone else’s mobile telephone.

7.  The mitigation advanced relies heavily on the good character of the Appellant, the fact that the offence was an opportunistic one which the Respondent did not dispute.

8.  The written submissions that I have received from the Respondent address the issue of the merits of this appeal in terms of whether or not the sentence was manifestly excessive or wrong in principle.  That is the test that the Court of Appeal applies. 

9.  My approach to these matters is that this is a rehearing.  It is an appeal from summary justice to a judge and, as such, it is a rehearing of the case and I listen to the facts and sentence in the way that I believe those facts justify.  It is a question, in my view, of judging the case.  It is not a question of judging the Magistrate or the sentence he passed to see whether it is excessive.

10.  It means this: if my view is different, even though it may not be excessively different from the view of the Magistrate, then the Appellant is entitled to the benefit of my view or, indeed, to the detriment of it, because this is truly a rehearing.

11.  In my view, and I am not saying that the Magistrate has fallen into any grave errors or anything like that, my view is just simply different from his. 

12.  In my view, because of the opportunistic nature of the offence and because he had got to 36 years of age having led an honest, industrious life, I judge the sentence of 9 months’ imprisonment is adequate. 

13.  In addition, Mr Donald, on behalf of the Appellant, addresses me today, saying that the effect of the sentence of imprisonment on the Appellant, with the loss of his support to his family, has been a salutary one; that he has learned a real lesson.  I have no trouble in accepting such mitigation.  From what I know, and I do have a social inquiry report about the Appellant, I judge that the imprisonment would have had such an effect.

14.  Accordingly I shall allow the appeal to the extent of reducing the sentence of 14 months to one of 9 months.

15.  It is unfortunate that the Appellant could not pray in aid a plea of guilty, but that was his choice.  The sentence thus remains 9 months.