HKSAR v. KWOK KAI CHUNG

HCMA 1132/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1132 OF 2004

(ON APPEAL FROM NKCC 5759/2004)

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J U D G M E N T

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1.  You were convicted after trial, during which you were represented by counsel, of a single charge of theft.  You stole two bottles of Coca-Cola from a supermarket.  You were then sentenced to serve a period of six months imprisonment.  You appeal the conviction and the sentence.  The grounds of appeal are those which appear in the respective pro forma Notice of Appeal. You are unrepresented in these proceedings.

Appeal against conviction

2.  The issue that had to be decided by the magistrate was straightforward.  The first prosecution witness testified that he had seen you pick up two bottles of Coca-Cola in the store, place them into a carrier bag which you were carrying and leave the store without making payment.  He intercepted you.  The police were called.  The two bottles of Coca-Cola were found to be inside a plastic bag inside the carrier bag which you were carrying.

3.  You gave evidence and testified that you had purchased those two bottles of Coca-Cola earlier the same day from another shop.  You denied having stolen them.

4.  This was a direct conflict of fact which it fell to the Magistrate to decide.  He did so.  It turned upon the credibility of the witnesses.  He had the opportunity of seeing and hearing the witnesses, including you.  He accepted the evidence of the prosecution witnesses.  He rejected your evidence.  He was entitled to adopt that approach.  It is hardly surprising that he did so given your claim that you had purchased the drinks from a specific shop in order to accumulate “points” yet were completely unable to identify that shop.  He specifically considered and dealt with matters which simply have been repeated today.  He set out detailed reasons for his decision in the Statement of Findings.

Appeal against sentence

5.  You were sentenced to serve a period of six months’ imprisonment.  Although the value of the goods in question was low the Magistrate adopted the approach that this was an appropriate sentence given the 15 previous identical offences of which you have already been convicted.  He explained to you that this justified an enhanced starting point.  He explained further that the value of the goods was no longer of particular significance when considered in the light of your persistent reoffending.  He was correct in his approach.

6.  You were, at the time of conviction, already serving a period of six months imprisonment in respect of an identical offence.  Moreover, this offence was committed whilst on bail for that earlier offence.  The Magistrate directed that the present sentence be served consecutively to that earlier sentence.  That was the correct approach.

7.  The fact that another has received a different sentence for a similar offence is irrelevant.  The issue is whether the sentence imposed on you for this offence is appropriate.  It is.  Entirely.

8.  There is no merit in the appeal against either conviction or sentence.  I confirm the conviction and the sentence imposed by the Magistrate and dismiss the appeal.

Ms Peggy Lo, GC for DPP/HKSAR, for the Respondent

Appellant, Kwok Kai Chung, in person