THE QUEEN v. WONG WAH KWOK

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTTRACY APPEAL NO. 661 OF 1988

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J U D G M E N T

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1. The Appellant was charged with two counts of theft and on his first appearance before the Court to answer the charges, he pleaded not guilty. He was then unrepresented When the case came on for trial, he had legal representation and he pleaded guilty at the outset.

2. The facts were that he and another person drove at night to a construction site where they stole a quantity of tools and equipment which was loaded into a motor vehicle of which the Appellant was the driver. The Appellant's accomplice was not arrested but "the property which was valued at some $13,000 was totally recoverecd.

3. Before his conviction he had a record of five convictions of which only one, committed in 1972, had an element of dishonesty.

4. In mitigation his counsel at the trial said that he was the sole support of his family which included an elderly mother. He had been a taxi driver but had had an accident and as a result had been unable to earn any income for a period and as a result was "hard up for money" It was because of this that he had been tempted to commit the offences.

5. The learned magistrate sentenced him to imprisonment for 12 months on each charge and ordered that the sentences be served concurrently, As a motor vheicle had been used in the commission of the offences, he also ordered that the Appellant be disqualified from holding a drivers licenee for a period of two years.

6. Mr. Mayne submits that the sentence is excessive in that the magistrate placed too much weight upon the previous criminal record of the Appellant. The magistrate in his Statement of Findings in relation to the Appellant's record said this ''the Appellant had a record of previous convictions not involving dishonesty except an offence committed in 1972. His record diminished his entitlement to the leniency a first or infrequent offender might expect". I do not that the magistrate did place too much emphasis on the Appellant's record in considering sentence, but considered his record in the appropriate way. A sentence of imprisonment for 12 month for a theft, such as this, which as the magistrate remarked, was somewhat akin to burglary is to my mind neither wrong in principle nor excessive.

With regard to the disqualification order, however I do think that the term is wrong in principle Mr. Mayne has referred me to Wright (1 Cr. App. (Sentence) 82) where the Court of Appeal said this

It is of course the policy of the law that once a man has served the imprisonment which is passed upon him as a punishment he should be given every help and consideration in re-establishing himself in an honest life and particularly in earning a living."

7. In that case the Appellant had been sentenced to a total of 2 years and 9 mcnths imprisonment for attempting to steal a quantity of sheet metal. But in addition to the sentences he was also disqualified from driving for a period of years. He too was a taxi driver and was desirous of resuming that occupation on his release from prison.

With regard to the disqualification order, the Court of Appeal said this:

"a period of disqualification such as this really presents to the Applicant a tremendous handicap and is possibly a stimulus for him going back to commit further crime in order to get money, when without this handicap he could make money honestly as a taxi driver. Accordingly, this "court is very clear that the disqualification imposed on him was wrong in principle".

8. The Court in that case reduced the period of disqualifieation so that it would expire contemporaneously with the Appellant's release from prison.

9. I think that that order should also be made in this case. Accordingly, I quash disqualification order and in lieu thereof substitute an order that he be disqualified for a period of 9 months from the date of the magistrate's original order. To that extent the appeal is allowed.