HKSAR v. TSE KA CHUNG
- Citation
- HKSAR v. TSE KA CHUNG
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 13 February 2007
- Posture
- Magistracy Appeal (criminal Sentencing) / Judgment on Appeal
- Case number
- HCMA1229/2006
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 13 February 2007
- Posture
- Magistracy Appeal (criminal Sentencing) / Judgment on Appeal
- Case number
- HCMA1229/2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Given the appellant's long history of similar theft convictions, the commission of a further offence while on bail, and the nature of the goods stolen, the magistrate's starting points and the imposition of two 8‑month sentences with four months of the second sentence consecutive were appropriate and did not breach the totality principle; appeal dismissed.
Court disposition
Appeal dismissed
Orders
- Two sentences of eight months imprisonment each confirmed
- Order that four months of the second sentence be served consecutively to the first confirmed
02
Material facts
Parties
HKSAR
Respondent Counsel: Ms Christal Chan, Senior Government Counsel, Department of JusticeTSE Ka-chung
Appellant Counsel: Appellant in personAmounts and remedies
- First Sentence (months): 8
- Second Sentence (months): 8
- Consecutive Portion (months): 4
- Number of Prior Convictions Recorded: 34
03
Procedural history
Posture
Magistracy Appeal (criminal Sentencing) / Judgment on Appeal
04
Questions and positions
Legal issues
- 01
What is the appropriate sentence for repeated theft offences?
- 02
Whether part of the sentence should run consecutively due to offending on bail
- 03
Whether the totality of the sentences is excessive
- 04
Whether comparison with another inmate's sentence is relevant
Party arguments
- Applicant
- Appellant in person contended the sentence was excessive and pointed to a different inmate receiving lesser sentences.
- Respondent
- Prosecution submitted that the appellant's extensive record of similar offences, reoffending while on bail and the ready realisability of the stolen items justified the individual starting points, an aggravating partially consecutive order and that the totality principle was satisfied.
05
Court’s reasoning
Legal principles
- 01
Judgment (Wright J.)
A defendant's repeated commission of the same offence and prior convictions are legitimate and important factors in assessing the appropriate level of sentence.
- 02
Judgment (Wright J.)
Offending while on bail is an aggravating factor that can justify consecutive time being imposed.
- 03
Judgment (Wright J.)
The totality principle must be applied to ensure the overall sentence is not excessive, but partially consecutive sentences can be appropriate where justified.
06
Ratio, limits and disposition
Ratio decidendi
Given the appellant's long history of similar theft convictions, the commission of a further offence while on bail, and the nature of the goods stolen, the magistrate's starting points and the imposition of two 8‑month sentences with four months of the second sentence consecutive were appropriate and did not breach the totality principle; appeal dismissed.
Obiter and limits
- Comparison with sentences imposed on other inmates is irrelevant to the appropriateness of the appellant's sentence.
- Prior sentences including probation, drug treatment orders and imprisonment had not deterred the appellant and are therefore relevant to sentencing.
Court disposition
Appeal dismissed
- Two sentences of eight months imprisonment each confirmed
- Order that four months of the second sentence be served consecutively to the first confirmed
Source and reliance status
Court of First Instance · 13 February 2007
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· 13 February 2007
bjbj 'Dvg HCMA 1229/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 1229 OF 2006 ____
HKSAR and TSE Ka-chung ____ Before: Hon Wright, J., in Court Date of Hearing: 13 February 2007 Date of Judgment: 13 February 2007 ___
JUDGMENT ___ The appellant appeals two sentences each of eight months imprisonment together with an order that four months of the second sentence be served consecutively to the first sentence. Each sentence was imposed in respect of an offence of theft and consequent upon the appellant's pleas of guilty. The first offence occurred on 6 November 2006. The appellant stole a total of 11 bottles of shampoo. The appellant was released on bail the following day. Seven days later the appellant stole three bottles of shower gel. All of these items are, as any magistrate sitting in Hong Kong knows, items which are readily realisable for cash on the street. The appellant first offended in July 1994 with an offence of theft. Between then and August 2006 he has been convicted on 34 occasions. Six of those occasions involved drug-related offences, one was for an offence of indecent assault, whilst the remaining 27 all related to theft. Sentences imposed on the appellant have run the gamut of probation orders, Drug Addiction Treatment Centre and imprisonment for varying periods: none appears to either have assisted or deterred the appellant. It is entirely appropriate to take into account in determining the proper level of sentence the criminal record of an accused person where that person repeatedly commits the same offence. The appellant refers to the sentences imposed on
another inmate which are less than his: that is of no relevance to whether the appellant sentence is appropriate or stop The individual starting points are appropriate. An aggravating feature in respect of the second offence was that it was committed whilst on bail for the first offence. A partially consecutive sentence is fully justified. The totality of the sentences is also appropriate. The appeal is dismissed and the sentences and order confirmed. (A R WRIGHT) Judge of the Court of First Instance High Court Ms Christal Chan, Senior Government Counsel, of the Department of Justice, for the HKSAR Appellant in person.
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