HKSAR v. CHUNG LIN HUNG

HCMA945/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 945 OF 1999

(ON APPEAL FROM KTC 1960 OF 1999)

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J U D G M E N T

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1. The Appellant appeals against a sentence of six months' imprisonment imposed on him by Mr Thomas Tsang on 12 August 1999 for the offence of taking a conveyance without authority. He also appeals against the consecutive sentence of two months' imprisonment for the offence of driving a motor vehicle without third party insurance.

2. His Counsel, Mr Kenneth Chan, submitted that that latter sentence was excessive, and also that the sentence of six months for the taking conveyance without authority offence was excessive having regard to the circumstances of this particular case.

3. Mr Chan's submission was that the circumstances of this case showed that the Appellant had simply taken the Light Goods Vehicle intending to use it for the purposes of having a joy ride. When the Appellant was arrested by the police after a traffic accident, all he had been doing was to drive along a road and there was no evidence whatsoever to suggest that he was intending to commit other offences. Mr Chan also said that the Appellant had pleaded guilty and that fact should be given some recognition by the Magistrate.

4. There is no tariff for this offence. Two cases had been quoted to me where the sentence imposed was one of six months' imprisonment. In my view, the circumstances of each case and the background of each defendant have to be looked at and have to be considered before the proper sentence can be assessed.

5. What Mr Chan submitted was of course true insofar as it went. However, the sentencing Magistrate was entitled to consider the record of the Appellant when assessing sentence, and it will not be an overstatement to say that the Appellant's record is a bad one. He has two previous convictions for the same offence of taking conveyance without authority. On the first occasion in 1994, he was sentenced to be detained in a detention centre, and that was also in conjunction with his conviction for other offences. The second time was in March 1999 when he was ordered to serve 180 hours of community service.

6. I regret to have to observe that honestly this Appellant has not reformed himself and he seems to me to be someone who has the inveterate habit of stealing other people's vehicles.

7. If he was a person without any previous convictions, I would agree with Mr Chan that the sentence of six months would be too high. But having regard to his antecedents, I am not able to say that the sentence of six months' imprisonment imposed by the Magistrate was manifestly excessive. Unless I can say that the sentence is manifestly excessive, it will be quite wrong for me to tinker with the sentence imposed. In the event, the appeal is dismissed.