HKSAR v. KISAKYE, LISA

HCMA385/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 385 OF 2009

(ON APPEAL FROM ESCC 1099 OF 2009)

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J U D G M E N T

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1.  This is an appeal against a total sentence of 16 months and 14 days’ imprisonment.

2.  It was made up of a sentence of 15 months’ imprisonment in respect of a charge of theft, 1 month’s imprisonment, consecutively, for a charge of assaulting a police officer in the execution of her duty, and the implementation of a suspended sentence of imprisonment for 14 days which had been passed in November of 2008 for a breach of condition of stay. 

3.  The facts can be shortly stated.  The Appellant was with a man in a bar in Wan Chai in the early hours of the morning on 1 March of this year.  The man was drunk.  The Appellant appeared to hug him, and a witness saw her remove the man’s wallet from his back pocket and pass it to another woman, who left the bar immediately.  The wallet was subsequently found on the ground outside, but $600 had been taken from it.  The witness had caused the police to be summoned, and the Appellant was arrested.

4.  She was brought back to the police station for an interview, but whilst being searched, she spat at and kicked twice at the abdomen of a woman police constable.

5.  The magistrate took a starting point of 15 months.  There was no discount to be had for a plea, because the matter had been contested and the convictions were after trial, and the magistrate likened the criminal conduct to that of a pickpocket.  I agree with his assessment of the situation.  He made the point that people in bars in Wan Chai are vulnerable.  They take drink, and the unscrupulous can exploit that, and this was an unscrupulous exploitation of that very thing.

6.  I agree with the magistrate that the starting point of 15 months’ imprisonment was justified.  Spitting and kicking at a woman police officer back in the police station, by which time she should have calmed down and have got over the trauma of being arrested in the bar, is separate criminal offending and well justifies 1 month’s imprisonment.

7.  The only thing that has exercised my mind is the implementation of the suspended sentence, and that is because the Appellant tells me today, and it came out really by a side wind, that after she had been convicted and given the suspended sentence in November of 2008, she was then detained, pending removal, and kept in custody at an Immigration centre.  Her description of it, and it is not in dispute, was that it was akin to her imprisonment now.  It lasted until 18 December.

8.  That detention was because of her status.  On 18 December, the Immigration Department learnt that she had made a claim for asylum, and thereafter she stayed in custody until January, when she was then released on a recognisance.

9.  It is a curious situation, therefore, that has the court implementing 14 days’ imprisonment because of an offence related to her immigration status here when that immigration status has of itself led to her loss of liberty for some 2 months, at least 1 month of which was pending removal.  If the Appellant had had a lawyer representing her today, it would have been argued that the court can give credit for that time spent in custody, and it would therefore be just not to implement the suspended sentence.

10.  I think there may be force in that.  This matter was not drawn to the magistrate’s attention when he implemented the sentence consecutively.  As far as he was concerned, there was no argument to support a claim that the implementation would have been unjust consecutively, and the natural result followed.  If he had known what I know now, he might have come to a different conclusion.

11.  So what I shall say is this:  that the appeal against the sentences of 15 months and the 1 month consecutively are dismissed.  The appeal against the implementation of the suspended sentence is allowed, but only to the extent of making the 14 days’ imprisonment run concurrently with the 15 months.