HKSAR v. LUI WAI MING, REUBEN

HCMA 208/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 208 OF 2002

(ON APPEAL FROM ESCC 502 OF 2002)

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J U D G M E N T

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1. The appellant, Reuben Lui Wai-ming, was charged with an offence of theft contrary to section 9 of the Theft Ordinance. He appeared at Eastern Magistrates Court on 19 February of 2002 before Mr Ian Candy, Permanent Magistrate, where he pleaded guilty to the charge and was sentenced to serve 6 months' immediate imprisonment.

2. The facts are extremely simple. He admitted stealing three bottles of a tonic medicine, a copy of the Oriental Daily and a copy of the Sun newspaper from a supermarket. The value of the stolen property was only $39.80.

3. In mitigation it was said that the appellant, who is 43, is a hawker earning between $800 to $1,000 a month. It was also said that he had suffered from a mental illness for many years and that he was co-operative.

4. When the Magistrate came to consider sentence he took into account the fact that the appellant had 25 previous convictions, 15 of which relate to theft. He took a starting point of 9 months and reduced it by one-third to reflect the guilty plea. No doubt the Magistrate took the view that a high starting point should be taken in this case as the appellant is a persistent offender. It is certainly clear from his criminal record that he is what may be described as a persistent thief. His first offence of theft was committed 1987.

5. Although the Magistrate was told that the appellant was suffering from a mental illness, he was not told exactly what that mental illness was. This morning I acceded to Mr Newman Wong, his counsel's application, to consider a medical report on his condition. I did that under the powers given in section 118(1)(b) of the Magistrates Ordinance.

6. The report indicates that the appellant, since his early teens, has suffered from a pituitary gland problem which caused him to have problems with his physical development. Put shortly, this problem has caused him to be effeminate, and as a result of that he suffers from a severe personality disorder. These are problems which he has had since his early teens and he has throughout that time been treated with medication and, I assume from the report, he has also received psychological counselling.

7. It is clear to me from reading the report that to some extent his medical problems affect his behavioural problems, and that although he is fully conscious of what he is doing when he steals, he does so from a sense of inadequacy. That can in no way, of course, excuse the fact that he is an habitual thief, but it does go to some extent to explain why he does it.

8. I am of the view, as the appellant is a person in full control of his mental faculties - he is certainly no way insane as a result of his mental condition - that, given his criminal record, an immediate prison sentence was called for in this case, despite the fact that the value of the property the appellant stole was of an exceptionally low value. I am also of the view that had the Magistrate had the benefit of the medical report that I have, he would have taken a more lenient view of the length of the sentence he had to impose upon the appellant.

9. I therefore allow the appeal and quash the sentence of 6 months' imprisonment, and impose in its place a sentence of 3 months' imprisonment.