HKSAR v. LEE CHEUK FAI

[English Translation-英譯本]

HCMA1238/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1238 OF 2002

(ON APPEAL FROM TWCC 3012 OF 2002)

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J U D G M E N T

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Introduction

1.  The appellant was convicted after trial by a magistrate of one count of Theft, contrary to s. 9 of the Theft Ordinance, Cap. 210.  He was sentenced to 6 months’ imprisonment.  The appellant now appeals against both conviction and sentence.  On his appeal against sentence, the Appellant was represented by Mr Wilson Chan, counsel instructed by the Legal Aid Department; whereas on his appeal against conviction, he was not represented.

Summary of Facts

2.  On 8 September 2002, the Appellant borrowed a cellular phone from the 1^st Prosecution Witness (PW1)  in a restaurant in Tsuen Wan.  He then told PW1 that he had lent the phone to a friend, and his friend had not returned the phone to him.  Two days later, when PW1 asked the Appellant to return the phone, the Appellant said that though he managed to find that friend, he could only get back the SIM card, not the phone.  PW1 and her husband subsequently asked the Appellant to make compensation to no avail. In October 2002, they reported the case to the police.  The Appellant was arrested.

3.  In his testimony, the Appellant claimed that he did not intend to steal the phone.  He lent the phone to a friend, but in the end, he only managed to recover the SIM card.  He only refused to make compensation as PW1’s husband demanded an exorbitant amount as compensation.

4.  The learned magistrate did not accept the evidence of the Appellant.  He accepted PW1’s evidence and found the Appellant guilty of theft.

Grounds of Appeal against Conviction

5.  The Appellant did not raise any grounds of appeal.  He just said the magistrate erred in saying PW1’s husband did not have any telephone conversation with him.  After perusing the magistrate’s Statement of Findings, it is noted that it was not what the learned magistrate said.  The learned magistrate only said that he did not accept the Appellant’s allegation that PW1’s husband demanded an exorbitant amount as compensation.

Findings

6.  Having considered all the evidence and carefully observed PW1’s demeanour as she gave evidence, the learned magistrate was satisfied that PW1 was an honest, reliable and credible witness.  He accepted PW1’s evidence.

7.  The learned magistrate rejected the Appellant’s explanation that he just lent the phone to someone and had no intention to steal the phone.  The learned Magistrate did not accept the Appellant’s version.

8.  The learned Magistrate had not erred in respect of the burden or standard of proof.

9.  The learned Magistrate, on the evidence he accepted, drew the only irresistible inference that at the material time, the Appellant obtained the cellular phone from PW1 on the pretext of ‘borrowing’ the phone, and his real purpose was to take away PW1’s phone without any intention to return it.  Finally, the learned magistrate found the Appellant guilty of the offence.

10.  I would like to point out that the Appellant alleged before me today that at that time, his friend had taken out the SIM card inside PW1’s cellular phone and inserted the SIM card from his (the friend’s)  own cellular phone before using it.  This version is different from his evidence given in the magistrate’s court.  According to the evidence given then, it was two days after the incident, when PW1 demanded the return of the cellular phone that he mentioned he had managed to find his friend and obtained the SIM card.  Had his friend really removed the SIM card and gone away with the phone, he would not have waited two days before telling PW1 that he only managed to recover the SIM card then.  In any event, I simply would not consider this different version put forward by the Appellant today in this appeal. 

11.  I see no grounds to say that the conviction is in any way unsafe or unsatisfactory.  The Appellant’s appeal against conviction is dismissed. 

Grounds of Appeal on Sentence

12.  Mr Chan submitted that, taking into account all the relevant circumstances of the case, including:

(1)  the nature of the case; and

(2)  the previous conviction record of the Appellant,

the sentence of 6 months’ imprisonment imposed by the learned Magistrate was wrong in principle and/or manifestly excessive.

13.  Mr Chan submitted that when the learned Magistrate sentenced the Appellant to 6 months’ imprisonment, he erred in principle for failing to state the original starting point of the sentence or the extent of enhancement on account of the Appellant being a repeated offender.

14.  Mr Chan submitted that based on the facts of the case, the appropriate starting point should not exceed 4 months, and the extent of “enhancement” should not be greater than 20%.  The sentence should therefore not exceed 5 months.

15.  In his submission, he cited the following 3 cases:

(1)  HKSAR v. LAM Kwai Wa, HCMA 1078/2002

(2)  HKSAR v. TANG Wing Cheung, CACC 146/2002

(3)  HKSAR v. CHAN Lai Ping, HCMA 194/2001

The Respondent’s response

16.  Mr Lee, counsel representing the Respondent, submitted that to a certain extent, this case involved “breach of trust” as PW1 agreed to lend the phone to the Appellant only because she knew the Appellant and trusted him.  On such basis, the learned Magistrate should, as a matter of principle, consider passing a custodial sentence on the Appellant.

17.  The Appellant was convicted after trial.  He showed no remorse for committing the offence.

18.  The learned Magistrate also noted the special nature of the case, i.e. theft of cellular phones was rampant.  Therefore, in principle, the learned Magistrate was obliged to pass a deterrent sentence in order to stop this kind of offence from becoming more and more prevalent.

19.  Further, the Appellant had nine convictions, six of which were theft and one was burglary.  On 20 July 2001, the Appellant was sentenced to a total of 8 months’ imprisonment for two counts of theft and on 20 August 2001, 6 months’ imprisonment for possession of dangerous drugs.  All these show that the sentences previously imposed on the Appellant had not taken any effect.

20.  This particular offence took place on 8 September 2002.  In other words, the Appellant committed a similar offence (theft)  just a short time after he was released.

21.  The Respondent submitted that in view of the Appellant’s previous convictions, he is no doubt a “persistent offender”. (See HKSAR v. CHAN Pui-chi [1999]2 HKLRD830). In order to protect the general public, the court needs to impose a deterrent sentence on the Appellant.

22.  Mr Lee also submitted that if the learned Magistrate had in fact adopted 5 months as the original starting point, then the extent of enhancement of sentence would not be too great.

23.  Given the special circumstances of this case, the Appellant’s previous convictions and his lack of remorse, Mr Lee was of the view that the sentence of 6 months’ imprisonment imposed on the Appellant by the learned Magistrate was in line with the relevant legal principle.  The sentence was not too severe, and certainly not manifestly too severe.

Reasons for Sentence

24.  The learned Magistrate in his Reasons for Sentence said (p.15 of the appeal bundle):

“The appellant is 23 years of age, married and his wife is pregnant. The Appellant has 9 previous convictions, 7 of which are similar in nature and the last one was on 20 August 2001, when he was sentenced to 6 months’ imprisonment for ‘Possession of Dangerous Drug’. The Appellant received treatment in a Drug Addiction Treatment Centre (DATC)  3 times. Yet all treatments failed. I am of the view that DATC is of no help to the Appellant, so I did not ask for a DATC report.

Nowadays, theft of cellular phones has become rampant in the community.

After taking into consideration that the Appellant denied the charge, that he was found guilty after trial and that he showed no remorse at all, there should not be any discount for sentence.  It is appropriate to pass a sentence of 6 months’ imprisonment.”

Findings

25.  Firstly, it is true that the learned Magistrate did not indicate the original starting point and the extent to which the sentence was enhanced on account of the Appellant being a persistent offender. Does it mean that the sentence was wrong in principle?

26.  If the learned Magistrate had stated the original starting point and the extent of enhancement, the parties concerned and the Appeal Court would know the reasons for sentence more clearly. Nevertheless, in my view, the situation in which a magistrate passes an enhanced sentence on a “persistent offender” with reference to Chan Pui-chi is different from that in which a sentence is passed on an offender who has pleaded guilty.  For the latter, if a magistrate does not indicate the starting point of sentence, it would not be possible to know if the magistrate has given the one-third discount normally given to a defendant who has pleaded guilty.

27.  In my opinion, there is no hard and fast rule requiring a magistrate to state the original starting point and the extent of enhancement.  The Appellant and the Appellate Court can, on the facts of the case and all the relevant circumstances, determine whether the final sentence passed by the magistrate was wrong in principle and/or manifestly excessive.

28.  In this case, the Appellant stole the mobile phone from an acquaintance (PW1)  on the pretext of “borrowing the phone”. Although I do not agree with Mr Lee that the Appellant was “in breach of trust”, it is undeniable that the Appellant did take advantage of his acquaintance with PW1 to commit the theft.  An immediate custodial sentence is therefore unavoidable.

29.  Having considered all the relevant facts of the case, I am of the view that it is appropriate to take a 4-month imprisonment as the original starting point.  The Appellant is a persistent offender.  Moreover, thefts of mobile phones are prevalent.  The original starting point needs to be enhanced for deterrence.

30.  Taking into account the above-mentioned factors, I would adopt 5 months’ imprisonment as an appropriate sentence.

31.  On the face of it, there is not much difference between imprisonment of 5 months and 6 months.  Perhaps an Appellate Court should not have intervened.  Nevertheless, based on an original starting point of 4 months’ imprisonment, a term of 6 months would mean an enhancement of 50%.  The facts of this case were not of the worst type.  To a certain extent, what the Appellant had committed amounts to “an opportunistic offence”: See HKSAR v. Tang Wing Cheong CACC 146/2002.

32.  Although the Appellant has previous convictions, his case is not so bad that it warrants as big an enhancement as 50%.  From this point of view, the sentence imposed by the learned Magistrate is indeed wrong in principle.  Accordingly, the appeal against sentence is allowed.  The sentence of 6 months’ imprisonment is set aside and substituted by one of 5 months.