HKSAR v. LEE KWOK HUNG
- Citation
- HKSAR v. LEE KWOK HUNG
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 5 August 2009
- Posture
- Criminal Appeal (sentence) / Court of First Instance Judgment on Appeal
- Case number
- HCMA494/2009
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 5 August 2009
- Posture
- Criminal Appeal (sentence) / Court of First Instance Judgment on Appeal
- Case number
- HCMA494/2009
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was allowed in that custodial sentences were inappropriate given the appellant's terminal illness, longstanding addiction, the minor nature of the theft and absence of a pattern of similar offending; consecutive imprisonment was unjustified and a conditional discharge on both matters was the appropriate disposal to avoid needlessly depriving the appellant of his remaining months.
Court disposition
Appeal allowed in part; original custodial sentences set aside; conditional discharges imposed on both matters.
Orders
- Appeal allowed in part and original sentences set aside
- Conditional discharges imposed on both the drugs and theft matters
- No further immediate detention ordered
02
Material facts
Parties
HKSAR
Respondent Counsel: Mr Jones Tsui, Public Prosecutor, Department of JusticeLee Kwok-hung
Appellant Counsel: Self-representedAmounts and remedies
- Quantity of Heroin: 0.1
- Value of Stolen Item (toblerone): HKD 17
- Original Sentence for Drugs (months): 6
- Original Consecutive Sentence for Theft (months): 1
- Time in Custody From 31 March to 23 June (days): 84
- Judge's Contemplated Reduction to Time Already Served (months): 2
03
Procedural history
Posture
Criminal Appeal (sentence) / Court of First Instance Judgment on Appeal
04
Questions and positions
Legal issues
- 01
Whether consecutive one-month sentence for minor theft was appropriate given context
- 02
Appropriate sentence for possession of 0.1 gram heroin for a long-term addict
- 03
Whether the appellant's terminal illness and limited life expectancy justify non-custodial disposal
- 04
How time spent in custody for one matter affects calculation of custody for another matter
Party arguments
- Applicant
- Appellant pleaded guilty, relied on long-term drug addiction and terminal illness (lung cancer and tuberculosis) as mitigation, had already spent substantial time in custody and should not be further imprisoned; sought non-custodial disposition or credit for time served.
- Respondent
- Prosecution noted the custody period from 31 March to 23 June related to the theft and pointed out implications for calculation of time served; did not press for immediate additional detention in the face of appellant's frailty.
05
Court’s reasoning
Legal principles
- 01
Deputy High Court Judge P Line, HCMA494/2009 judgment
Court may take severe ill-health and limited life expectancy into account as strong mitigation in sentencing.
- 02
Deputy High Court Judge P Line, HCMA494/2009 judgment
Consecutive sentences must be justified by seriousness and pattern of offending; short, isolated minor thefts do not automatically justify consecutive imprisonment.
- 03
Deputy High Court Judge P Line, HCMA494/2009 judgment
Conditional discharge is an available and appropriate disposal where imprisonment would be disproportionate or not in the public interest given the offender's circumstances.
- 04
Deputy High Court Judge P Line, HCMA494/2009 judgment
Time spent in custody may be credited towards sentence but must be correctly attributed to the relevant matter.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was allowed in that custodial sentences were inappropriate given the appellant's terminal illness, longstanding addiction, the minor nature of the theft and absence of a pattern of similar offending; consecutive imprisonment was unjustified and a conditional discharge on both matters was the appropriate disposal to avoid needlessly depriving the appellant of his remaining months.
Obiter and limits
- The judge expressly declined to say the magistrate was wrong, noting two courts can reasonably differ on sentence.
- If the theft had been part of a pattern of shoplifting to fund addiction, imprisonment might have been justified.
- Appellant made no emotional plea and described his prognosis as only a few months left.
- The judge was prepared to reduce to two months served but declined to detain the frail appellant further given the custody attribution issue raised by prosecution.
Court disposition
Appeal allowed in part; original custodial sentences set aside; conditional discharges imposed on both matters.
- Appeal allowed in part and original sentences set aside
- Conditional discharges imposed on both the drugs and theft matters
- No further immediate detention ordered
Source and reliance status
Court of First Instance · 5 August 2009
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 5 August 2009
bjbj HCMA494/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 494 OF 2009 (ON APPEAL FROM ESCC 1580/2009 & 1000/2009) ____
BETWEEN HKSAR Respondent and LEE KWOK-HUNG Appellant ____ Before: Deputy High Court Judge Line in Court Date of Hearing: 5 August 2009 Date of Judgment: 5 August 2009 ___
J U D G M E N T ___ This is an appeal against sentence. The appellant pleaded guilty to the possession of .1 of a gram of heroin. He was caught in a stop and search in January of this year. He was bailed. In March he stole a bar of Toblerone from a shop. Its value was $17. As a result of that he spent from 31 March until 23 June in custody. On the latter date he was granted bail in the High Court. In the meantime he was sentenced to 6 months imprisonment for the drugs offence and 1 month consecutively for the theft. The appellant has been a drug addict for nearly 40 years. He is suffering from lung cancer and tuberculosis. There was ample evidence that he was suffering from lung cancer before the magistrate. In addition to that evidence I have got an up to date letter from the Department of Clinical Oncology at the Queen Mary Hospital confirming the diagnosis and detailing the treatment by chemotherapy. Not surprisingly, the appellant has some previous convictions. There are seven appearances in all. As a young man he got himself into trouble managing an unlicensed massage establishment. Since 1986 there have only been three appearances: one for theft, for which he was sentenced to probation; two, for possession of dangerous drugs, one where he went to DATC and one where he was bound over. If the theft of the bar of Toblerone had stood by itself he would not have
gone to prison. It simply was not serious enough. If I had thought it was part of a pattern of behaviour whereby he stole to sell in order to raise money to feed his drug addiction or if he had a whole series of shop thefts on his record imprisonment would have been justified. The fact that he was sentenced to 6 months for the drugs offence does not make the consecutive sentence of 1 month for the bar of Toblerone right, in my view. What about the sentence of 6 months? This is a re-hearing. I do not have to say the magistrate was wrong, but my view is different from his. I do not want to engage in a debate about what the right sentence is for men who have been drug addicts for approaching 40 years because the fact is quite clearly on the evidence before me and from what I see of the man in court before me now, that he is dying. He has not sought to make the most of the situation in an emotional plea to me. In fact at the beginning when asked what he wanted to say, he answered nothing . In answer to questions from me, I have adduced from him that his doctor told him, to quote him, ve still got a few months left. I cannot see the need for society to take some of those few months and put him in prison for the crimes he has committed against the background of that long-term drug addiction and the nature of his record that I have summarised. I emphasise I am not saying the
magistrate is wrong. This is exactly the sort of case where two courts can have different views. I was going to reduce the sentence to an amount that he had already served, namely 2 months, allowing immediate release , but it is pointed out to me helpfully by counsel for the respondent that the time between the end of March and 23 June he was in custody in fact in relation to the theft matter. Whilst I suspect it would count towards a two month sentence for the drugs I do not want the appellant unnecessarily detained today. He is looking very frail. In those circumstances I shall impose conditional discharges on both of these matters. (P Line) Deputy High Court Judge Mr Jones Tsui, Public Prosecutor of the Department of Justice, for the Respondent Appellant, Lee Kwok-hung, in person
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