HKSAR v. GURUNG KIRAN

HCMA 472/2023 [2024] HKCFI 2801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 472 OF 2023 (ON APPEAL FROM WKCC 4927 OF 2023)

BETWEEN

HKSAR Respondent and

GURUNG KIRAN Appellant Before: Deputy High Court Judge Yiu in Court Date of Hearing: 16 July 2024 Date of Decision: 16 July 2024

J U D G M E N T The Appellant pleaded guilty to one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210. The Magistrate sentenced the Appellant to 3 months’ imprisonment and a compensation order of $4,500 to be paid to the victim within one month of the release from prison. The Appellant now appeals against sentence. The facts admitted by the Appellant was that on 16 November 2023, the owner of New Natural laundry shop found that a condenser which was installed outside her shop was missing. The owner therefore reported the case to the police. CCTV footage showed that the Appellant was pushing a trolley with the said condenser on it in the small hours of 15 November 2023. The Appellant’s identity was revealed by a police officer and the Appellant was later on arrested by the police officer near his residence on 16 November 2023. At that time, the Appellant was still wearing the same clothes as in the CCTV footage. Under caution, the Appellant admitted that he had stolen the said condenser out of greed and had already sold it to a person unknown for $350. In mitigation, the legal representative of the Appellant submitted that the Appellant committed the charge out of greed and he needed money to buy food. The Appellant was under financial pressure as he had to send money to his son who is currently living in Nepal. The Appellant was remorseful and promised not

to re-offend. He was also willing to compensate the shop in full one month after his release from prison. Magistrate’s Reasons for Sentence Concerning the Magistrate’s reasons for sentence, the Magistrate considered that the Appellant was 29 years old, came from Nepal in 2010 and has married a Hong Kong Permanent Resident, and subsequently became a Hong Kong permanent resident himself. The Appellant was a construction worker making a monthly salary of around $15,000 and his wife was a part-time cleaner earning about $9,000 per month. The son, who was 10 years old, lives in Nepal. The Magistrate also considered that the Appellant had 4 criminal convictions, the latest and similar one was recorded in September 2023 and on that occasion, he was sentenced to 2 months’ imprisonment and a 4-week suspended sentence in relation to an earlier “assault occasioning actual bodily harm” case was also activated. The Magistrate found that the stealing of the condenser would bring a great deal of inconvenience to the shop, that the shop will have to purchase a new one and install it, and that the operation of the shop will be slightly adversely impacted. Although the Appellant indicated his willingness to make full compensation but the relatively high value of the condenser was a factor that the magistrate had to consider in taking into account and the Magistrate also found that there was an

aggravating factor that the Appellant committed the current offence soon after the Appellant had completed the sentence for another offence. So all in all, the Magistrate adopted a starting point of 4.5 months’ imprisonment and upon guilty plea, reduced to 3 months’ imprisonment and a compensation order had also been made. Grounds of Appeal For the Appellant’s grounds of appeal, he basically, said that he wanted to be a good person and asked to give him a last chance, so that he could change to be a good and responsible person to his family and he also wanted to take care of his family members, to bring good and happy moments to them. So he asked the court to give him a chance and to sentence him leniently. Respondent’s Reply The Respondent said that there is no sentencing tariff for the offence of theft and in 香港特別行政區 訴 胡基強 [2018] HKCFI 2744, the Appellant stole some cakes which were placed outside a cake shop before it was opened for business. He was sentenced to 4 months’ imprisonment, the appeal only against conviction was dismissed by the court. And also in 香港特別行政區 訴 鄭子成 [2023] HKCFI 2641, the Appellant was arrested for stealing some properties, the value of which could not be ascertained, from a construction site and he was sentenced to 13 months’ imprisonment. The Respondent also referred to the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, which says that the

sentence imposed previously were not able to deter the Appellant from committing further offence. Hence, there was a need to enhance the sentence to try to achieve the desired deterrent effect. So all in all, the Respondent said that the sentence is appropriate and was not manifestly excessive. Consideration In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate. So for sentencing appeal, the court also had to consider all the facts, all the mitigation submitted and all the relevant authorities. For the present case, the Appellant stole a condenser valued at $4,500 which was the property of a laundry shop. It was only revealed after viewing the CCTV that the identity of the Appellant was disclosed. The Appellant had 4 previous convictions and the similar one was in September 2023, very soon after serving that sentence, the Appellant committed the present offence. So it was clearly an aggravating factor to be taken into account. The Magistrate had also considered the inconvenience brought to the shop and there was no practical way to guard against the

risk of being stolen when the condenser was placed outside. So eventually, the Magistrate adopted a sentence starting point of 4.5 months’ imprisonment and that to be reduced to 3 months’ imprisonment upon guilty plea. There is no sentencing tariff for the sentence of theft, each case must decide on its own facts. After considering all the facts of the case, I am also of the view that the Magistrate’s sentence is appropriate and certainly not manifestly excessive. Therefore, the appeal against sentence is to be dismissed accordingly. (Frankie Yiu) Deputy High Court Judge Ms Mo Kwok-ping Alison, PP of the Department of Justice, for the Respondent The Appellant appeared in person