HKSAR v. CHEUNG CHI HUNG

[English Translation – 英譯本]
HCMA 55/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 55 OF 2008

(ON APPEAL FROM TWCC NO. 2622 OF 2007)

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty before the Magistrate to three counts of attempted theft (charges (1) to (3)), contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and to one count of assaulting a police officer in the due execution of his duty (charge (4)), contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong. He was sentenced as follows:

Charge (1)     to 4 months’ imprisonment;

Charge (2)    to 4 months, of which 3 months would run consecutively to the sentence for Charge (1);            

Charge (3)    to 4 months, of which 3 months would run consecutively to the sentences for Charges (1) and (2);

Charge (4)    to 2 months, of which 1 month would run consecutively to the sentences for Charges (1) to (3),

making a total term of 11 months.

2. The appellant appealed against sentence. After hearing, I dismissed the appeal, for reasons to be set out below.

Admitted facts

3. The admitted facts are straightforward. At about 11 p.m. on the day of the offence, the three medium-sized goods vehicles involved in the case were parked along Shek Pai Street. A driver arrived at Shek Pai Street in another vehicle and noticed that one of the goods vehicles, which belonged to his company, had its lights on. He went up for a check and found the appellant in the vehicle compartment dismantling a radio communication device. The driver stopped the appellant and called the police. The police arrived and found upon investigation that two other goods vehicles had marks of damage. The police arrested the appellant, who remained silent under caution. Subsequently, the appellant admitted charges (1) to (3).

4. The three goods vehicles were all damaged and the values of the damaged properties or repair costs were $1,500, $500 and $500 respectively.

5. The police took the appellant back to the police station. During the search on his person, the appellant pushed against the chest of a police officer with his hands, causing the police officer’s back to bump against the wall. The appellant ignored warnings and even tried to bite that police officer and another police officer. In the end, the police subdued the appellant by using pepper spray. Under caution, the appellant admitted charge (4).

Grounds of appeal

6. The appellant submitted that he had merely made unsuccessful attempts to steal; that although he had damaged vehicles in the course of committing the offences, no dispute over money was involved and he should be less culpable than someone who deliberately damaged vehicles; and that although he had one conviction record for theft of a vehicle, he had merely been sentenced to detention at a drug addiction treatment centre. For those reasons, it was submitted, the starting point of 6 months adopted by the Magistrate was excessive.

7. The appellant also contended that as he committed the three offences of attempted theft as a series in the course of one day, all the sentences should be ordered to run concurrently.

8. All in all, the appellant submitted that the total term of 11 months was excessive.

The respondent’s reply

9. Mr Tam for the respondent replied that the total term of 11 months might be on the high side but was not manifestly excessive.

Discussion

10. In passing sentence, the Magistrate took into account that the appellant was aged 52 and had 15 previous convictions, one of which was for an offence similar to the present one. Having considered the case of R. v. Wong Kwong Yin [1998] HKC 844, which involved an offence of theft from a vehicle, the Magistrate adopted 6 months as the starting point for charges (1) to (3). On account of the appellant’s guilty plea, the Magistrate sentenced him to 4 months’ imprisonment on each count. The Magistrate had this to say:

… 3 months out of the 4 months on count 2 and count 3 shall run consecutively to the former [sentence], making a total term of 10 months. The fact that the offences were committed at the same location and on the same day does not necessarily entail concurrent sentences, otherwise an offender would only have to face a short term of imprisonment for committing multiple offences of theft from a number of vehicles in a car park on a single day. …

11. With regard to charge (4), the Magistrate, taking into account that the appellant committed the offence in the Report Room in blatant disregard of law and order and had to be subdued in the end with the use of pepper spray as he had ignored repeated warnings, adopted 3 months as the starting point and reduced the term to 2 months by reason of the appellant’s guilty plea.

12. Having also considered the totality principle, the Magistrate imposed an overall sentence of 11 months’ imprisonment.

13. In the case of Wong Kwong Yin, the appellant pleaded guilty to 6 charges of theft from a vehicle. The magistrate sentenced the appellant to 4 months’ imprisonment for each charge, with all the sentences to run consecutively, making a total term of 24 months. The appellate court took the view that the sentence for each charge was beyond reproach but the magistrate should have considered whether any of the offences arose out of the same facts and should have taken into account the totality principle. The appellate court considered the term of 2 years excessive and, after increasing some of the sentences to 6 months and 9 months, imposed a total term of 15 months in substitution.

14. The appellant in the present case attempted to steal from three vehicles successively in one night. On the facts of the case, although he had not succeeded in the theft, his criminality was not significantly different from that in a successful theft. In respect of each charge, a starting point of 6 months is by no means excessive, particularly given that the appellant has numerous previous convictions and has been convicted of a similar offence. I cannot accept the appellant’s argument that he is less culpable than that of someone who deliberately damaged a vehicle. As a matter of fact, it was for the purpose of stealing from the vehicles that the appellant damaged them.

15. Had the Magistrate considered the overall starting point on the basis that the appellant had committed a series of attempted theft, the starting point would certainly have been higher than 6 months.

16. What I have to consider is whether the total term of 11 months is excessive. I agree with Mr Tam’s submission that the total term of 11 months may be on the high side but is not manifestly excessive.

17. The total term of 11 months would translate into a notional overall starting point of approximately 17 months. In light of the facts of the case as a whole and the appellant’s background, I do not consider that notional starting point to be excessive.

18. For the above reasons, the appeal is dismissed.