HKSAR v. LEUNG KA LONG

HCMA 250/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 250 OF 2001

(ON APPEAL FROM ESCC 443/2001)

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J U D G M E N T

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1. The defendant in this case and the appellant here pleaded guilty to one charge of theft, in that he stole a DVD valued at $280 from a shop in Causeway Bay.

2. The facts as related to him at the time when he pleaded guilty and which he admitted to was that he had gone into the shop and removed the wrapping and the anti-theft device and placed the disc in a plastic bag, which he had brought with him to this shop. When he left the shop without paying, he was then arrested and the item was recovered from his possession.

3. It is apparent from the transcript that the learned trial Magistrate had neglected to further inform the defendant at the time of his plea that the police subsequently found a cut on the disc cover and a blade was found in the defendant's possession which would have been used to make the cut.

4. But in any event, when the learned trial Magistrate came to sentence the appellant, his oral reasons for sentence was that due to the prevalence of the offence and the fact that the appellant was a persistent offender, he considered that a starting point of 12 months' imprisonment was appropriate, reducing it to 8 months for the plea.

5. When the learned trial Magistrate came to write his reasons for sentence, his reason for the 12 months starting point was that, first of all, he considered the appellant to be a persistent offender and the extreme prevalence of this type of shop theft and also he said that the inference from the fact was that the offence was not a "spur of the moment" offence. The defendant had entered the shop equipped to remove the anti-theft device from the packaging of the disc and therefore he said he considered an enhanced penalty appropriate.

6. It is clear that the learned Magistrate in assessing the sentence to impose on the appellant should not have included facts which the appellant had not admitted to. As it is clear from the reasons for sentence that one of the considerations the learned trial Magistrate considered for the enhancing the sentence was that this was not a "spur of the moment" offence.

7. In the circumstances, I consider that the enhanced sentence was therefore wrong in principle and therefore the sentence was manifestly excessive. I consider that in these circumstances because of the prevalence of the offence and the fact that the appellant had been in the court before for other offences of dishonesty, the appropriate starting point in this case should be one of 9 months and with his plea, he is entitled to a one-third discount, so the appropriate sentence in this case should be one of 6 months' imprisonment.

8. I consider that imprisonment is appropriate for most shoplifting cases because of the prevalence of the offence and the difficulty of detection. Many millions of dollar are lost by shops due to shoplifting. So a deterrent sentence is necessary. So the appeal against sentence is allowed and the original sentence is substituted by one of 6 months' imprisonment.