HKSAR v. DANG VAN-XE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1081 OF 1998

(On appeal from TMC 3047 of 1998)

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J U D G M E N T

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1. The Appellant was charged on the 4th October 1998 at Wellcome Supermarket, No. 9, Ground Floor, Hing Kok House, Kwai Hing Estate, Wo Tong Tsui Street, Kwai Chung, New Territories. He had stolen 43 pieces of Oral B toothbrush totally valued at $909.40, the property of Wellcome Company Ltd. The Appellant had pleaded guilty before the Learned Magistrate Ms. Remedios. He admitted the facts following the guilty plea.

2. In essence, the relevant facts are as follows: That at the relevant time, the Appellant, together with a woman, were discovered by a security guard of Wellcome Supermarket as having been acting suspiciously. Under observation, the woman took 43 toothbrushes from the shelf while the Appellant was keeping a look out. The Appellant, together with the woman, then took the toothbrushes to a quiet corner of the supermarket and put them into a rucksack. The two of them then left the supermarket without paying for the property. They were then stopped outside.

3. Before the Learned Magistrate, the criminal records were disclosed. He had 19 previous convictions, 13 of which were similar to the present charge. There is, in fact, little that can be said by way of mitigation. I like to add in passing there was a slight aggravating feature in this case concerning the conduct of the Appellant. In that, after he was stopped and taken to the office of Wellcome Supermarket, he made an attempt to escape and had to be subdued by the staff members there.

4. I heard what the Defendant had advanced this morning as his grounds of appeal. Essentially, he was telling me that the term of imprisonment was lengthy and he liked to be released as soon as possible so as to look after his child. He further told me that his wife had deserted him for six months and these reasons had not been advanced before the Learned Magistrate. I am sure it would not have made any difference to the term of imprisonment that she was mindful to impose.

5. The facts, as were admitted by the Appellant, disclosed an organised crime involving the participation of another person. The modus operandi of this offence is quite different from the other run of the mill shoplifting cases. Here, both the quantity and the value of the stolen property are strongly indicative that the stolen property was intended to be sold with a view to making profit.

6. The Learned Magistrate in sentencing the Appellant had been extremely thorough in considering both the various features of the offence and also the background of the Appellant. Mr. Brook for the prosecution had agreed with me in the course of our dialogue between the bench and the Bar that 8 months, on the face of it, would appear to be on the high side. It is not the function of this court to substitute its opinion for that of the Learned Magistrate.

7. An appeal against sentence would only be allowed on two grounds. The first ground is: the sentencing Magistrate had adopted or had used wrong principles. The second ground is: the sentence was manifestly and I stress manifestly excessive. The mere fact that the sentence was, on the face on it, on the high side is not a reason at all.

8. In the circumstances of this case, the Learned Magistrate was fully entitled to pass the sentence as she did. I see no grounds at all that I should interfere. The appeal must be disallowed.