HKSAR v. PANG CHAI

HCMA764/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.764 OF 2002

(ON APPEAL FROM NKCC 4456 OF 2002)

----------------------

-----------------------

---------------------

J U D G M E N T

----------------------

1) The appellant pleaded guilty to one count of burglary before the learned magistrate on 19 July 2002. He was then represented by the duty lawyer. The admitted facts disclosed that the appellant had entered a shop and stolen some money inside. After the arrest, the appellant admitted the offence and said that he had committed the act out of a momentary greediness. The stolen amount was just $22 odd.

2) In his mitigation, the duty lawyer pointed out that the appellant was already 71 years of age and his family members were living in China. He himself lived alone in Hong Kong, in the street, and relied on public assistance.

3) Having heard the mitigation, the learned magistrate imposed a term of 10 months. He adopted 18 months as the starting point, but he made it clear that the usual starting point was really 21/2 years for non-domestic premises burglaries. The magistrate granted the usual discount of one-third and further reduced the sentence by two months to reflect the appellant's age. The record showed that the appellant had altogether 27 previous convictions, seven of them related to crimes of dishonesty, and quite a number of drug-related offences.

4) The appellant now complained that the sentence was too severe. He was not legally represented this morning. He asked the court to reduce the sentence as he hope to be able to see his family members for the Chinese New Year. I believe the present sentence may not actually deprive him of such hope.

5) In a way, I agree that the sentence may be on the high side in view of the particular circumstances of the case, and I might impose a different sentence. However, that is not the test to be adopted for an appeal on sentence. I have read the learned magistrate's Reasons for Sentence. I cannot find anything wrong about the principle nor can I say the sentence is manifestly excessive. It is true that the appellant is already 71, but the learned magistrate had already given allowance in this regard.

6) In these circumstances, I find no reason to disturb the sentence. The appeal must be dismissed. If the appellant is still suffering from some kind of drug addiction, I hope he could use the time to clear this problem otherwise he might still have to face imprisonment in his advanced age.