HKSAR v. LUI WAI MING, REUBEN

HCMA 1073/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1073 OF 2004

(ON APPEAL FROM ESCC 4463/2004)

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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 had admitted theft of pieces of fruit from a department store.

2.  The theft which he admitted to was that the Appellant was seen by a plaincloth security guard at City Super and he had taken up two pomelos and put them into a plastic bag.  And then subsequently left this store without paying.  Under caution, the Appellant had admitted to stealing the pomelos.

3.  The Appellant was represented by a duty lawyer and in mitigation, the duty lawyer had informed the Court that the Appellant is at present, age 46, and receiving disability allowance and that on the day of the offence, he was simply greedy and took the pomelos.

4.  The lawyer also informed the Court that the Appellant had been a patient with the Eastern Hospital for three years attending the psychiatric unit.  If the Court felt that his mental state was relevant to sentencing the Court may call for reports.

5.  The learned Magistrate did not feel that was necessary in the circumstance and the learned Magistrate was also very much aware of the quite appalling record of the Appellant.  The Appellant had 23 previous convictions, most of them were for theft and it can be seen from the Appellant’s record that he had been in prison for theft.  And the last occasion in November 2003, he was sentenced to 2 months’ imprisonment for theft; in August 2003, he had been sentenced to 6 months for theft; and in July 2002, he was sentenced to 6 months for theft again.

6.  These are merely examples which I had quoted from the criminal record of the Appellant so the learned Magistrate considering the persistence of the Appellant in committing such offences thought that a starting point of 9 months’ imprisonment had to be imposed in the circumstances.  Although the value of the goods were not high and therefore giving one third discount to the Appellant.  He sentenced the Appellant to 6 months’ imprisonment.

7.  The Appellant appealed on the basis that he could not understand why a psychiatric report was not called for and I assumed he is also complaining against the excessiveness of the sentence.

8.  There is no doubt that the Appellant knew what he was doing.  He had gone to the store with a plastic bag and he did, as the learned Magistrate said, very brazenly take the pomelos and put the pomelos into the plastic bag before walking out.  It was deliberate and intentional and so there was no indication whatsoever that the Defendant may have been affected by his mental condition.

9.  When the Defendant was stopped, he readily admitted what he had done.  So in the circumstances, there was no reason for the learned Magistrate to consider that he needed to call for a psychiatric report.  And in effect, the counsel representing the Defendant had not felt that there was any need to call for a psychiatric report because she had left it up to the learned Magistrate. 

10.  Just looking at the sentence itself, and the facts in the case one can say that the sentence was indeed a very high one.  But in a sentence of this nature.  One does not only look at the facts of the case, but also at the offender and the Defendant’s background as I have said is appalling.  He has been persistently brought to court on theft charges and had been sentenced to imprisonment of as long as 6 months but that had not served to deter him from committing this offence.

11.  In those circumstances, the learned Magistrate had no alternative but to impose a more severe sentence on him than would otherwise need to have been the case.

12.  The duty of the learned Magistrate is to consider all the circumstances before considering the appropriate sentences and the learned Magistrate have done so.  Although the sentence is a high one and a severe one I do not consider that in the circumstances that it was manifestly excessive so the appeal is dismissed.