HKSAR v. NGAI KING YING

HCMA 495/2024

[2025] HKCFI 5659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 495 OF 2024

(On appeal from ESCC 2726/2024)

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J U D G M E N T

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1.  The Appellant was charged with one count of theft contrary to section 9 of the Theft Ordinance (Cap. 210), to which she pleaded guilty and was convicted accordingly. The sentencing Magistrate ordered a fine of $100,000, 6 months’ imprisonment to be suspended for 3 years, and the Appellant’s then existing probation order for an earlier conviction to be extended for 3 years as well. The Appellant now appeals against the sentence.

The Facts

2.  At about 7 pm on 23 August 2024, the Appellant was observed acting suspiciously in City’super supermarket in Times Square, Causeway Bay.  A security guard monitoring the CCTV saw the Appellant put some goods into a paper bag and eventually left the supermarket without payment.  Outside Lane Crawford, the security guard intercepted the Appellant and asked if she had any unpaid items, to which she denied but failed to provide a receipt.  A report was made and a police officer came to conduct a search on the Appellant.  Several stolen items including two packs of crab powder, four packs of asparagus and two packs of bread totalling $903.90 were found in the Appellant’s paper bag.  At 7:30 pm, the Appellant was arrested for theft and under caution, she denied stealing.

Mitigation and Sentence

3.  The Appellant was 71 years old and had a total of 13 prior convictions, 12 of which were for theft.  Her criminal record dated back to 1973 when she was 20 years old.  She had been placed on probation for 8 times.  She committed the present offence less than 2 months into her eighth probation which was for her last conviction of theft (shoplifting)  recorded on 2 July 2024.

4.  In mitigation, the Defence Counsel urged the Magistrate to consider obtaining a probation officer’s report because of the Appellant’s psychiatric illnesses, early-stage dementia and other matters.  Initially, the Magistrate acceded to such request to obtain a probation officer’s report to assess the Appellant’s conduct during her probation.  The Magistrate at the same time revoked the Appellant’s bail pending report.

5.  The Defence Counsel immediately asked for a review.  Upon further submissions by the Defence Counsel, the Magistrate ultimately decided to give the Appellant “one very last chance, which has to be a bitter, painful and therefore unforgettable”[1]. The Magistrate then passed the sentence as above, namely a fine of $100,000[2], 6 months’ imprisonment suspended for a period of 3 years and extension of the then existing probation order also for 3 years.

Grounds of Appeal

6.  The Appellant relied on a total of three grounds of appeal:-

 Ground 1:  The Magistrate erred in law in imposing both a suspended sentence and a probation order together.

 Ground 2:  The Magistrate erred in law in failing to address and apply the totality principle at all, or if it was applied then applied incorrectly.

 Ground 3:  The Magistrate erred in passing a total sentence that was “unduly crushing”.

My Decision

7.  At the end of the first hearing of this appeal on 5 September 2025, I adjourned the hearing for obtaining an updated probation officer’s report (“Probation Officer’s Report”), which was made available for the resumed hearing on 10 October 2025. As conclusion, the Probation Officer reported that, given that the Appellant had been placed on probation supervision for eight times and repeatedly violated the probation orders, probation was considered to be of limited rehabilitative value to the Appellant and that she was assessed to be not suitable for further statutory supervision.  Probation order is not recommended in this case[3].

8.  In the circumstances, extension of the existing probation order of the Appellant is now out of the question.  It follows that Ground 1 is no longer pursued and not required to be dealt with.

9.  The other two grounds, Grounds 2 and 3, can be conveniently considered together.

10.  It is confirmed by the Respondent both in its written submission and in Court, which in my view rightly and fairly, that the Magistrate’s imposition of the maximum fine of HK$100,000 is excessive in the circumstances of the case and that the Respondent does not seek to uphold that aspect of the sentence. 

11.  The only remaining issue relates to the suspended sentence of 6 months’ imprisonment for 3 years.  The Appellant invites me to consider a shorter sentence for a shorter suspension period.  The Respondent on the other hand submits that it is appropriate and not manifestly excessive.

12.  In particular, it is submitted by the Respondent that imprisonment is appropriate for most shoplifting cases because of its prevalence and the difficulty of detection[4], and that the Courts have long recognized that custodial sentences are appropriate for repeat shoplifters, with the length of imprisonment to be enhanced on the number of previous convictions[5].

13.  The Respondent also recites several magistracy appeal cases where the appellants with previous similar convictions and/or different mental or psychiatric problems were given sentences of a few months’ imprisonment for shoplifting offences of similar or comparable facts to this case[6].

14.  The Respondent further submits that, in light of the Appellant’s mental health conditions, the Magistrate had already exercised considerable leniency by suspending the 6-month imprisonment for 3 years thus striking a fair balance between deterrence and rehabilitation.

15.  While agreeing to the analysis and the conclusions in those decisions in the above appeal cases, I must say this may well be an exceptional case because of the Appellant’s personal circumstances and therefore warrants different and lenient considerations. 

16.  As revealed in the Probation Officer’s Report, the Appellant is now 72 years old, having primary education and ceased working since 1977, and residing with her 83-year-old husband and a 67-year-old domestic helper in a private flat.  Since 1983, she has been receiving psychiatric and psychological treatment for anxiety, depression and kleptomania. She was found to have borderline intelligence in an IQ assessment in 2003.  She was diagnosed to have suffered from Alzheimer’s disease in September 2024 (i.e. about two months before her sentence for this case). She has a total of 13 theft-related convictions since 1973, for which she had been bound-over (once), fined (twice), given suspended sentences (three times)  and placed on probation (eight times).

17.  The Probation Officer reported that the Appellant claimed to have no memory or recall of what she had done in the supermarket after she had gone into it, and that she was shocked when caught by the security guard.

18.  The Probation Officer also reported that the Appellant had become emotional in the interview when revealing her shoplifting behaviour over the past fifty years. She regarded herself as a burden to her family, felt guilty and shameful for her mistakes and once expressed suicidal thought of jumping from height. After having calmed down, she apologised for her misdeeds and promised not to go to any supermarkets again.

19.  The Probation Officer opined that, given the Appellant’s mental conditions, she warrants long-term psychiatric and psychological treatments as well as family and social support.  The family is supportive and promises close companionship and monitor for any relapse of the Appellant’s kleptomania in preventing her from breaking the law again.  

20.  Having carefully considered all the circumstances of the case and those of the Appellant, I am convinced that Grounds 2 and 3 should succeed and this appeal against the sentence should be allowed.  The $100,000 fine and the order for extension of the existing probation order shall be set aside.  The Appellant’s existing suspended sentence shall be substituted by one month’s imprisonment to be suspended for a period of eighteen months. 

21.  I have to add that this appeal is allowed mostly on the basis of the unusual if not unique personal circumstances of the Appellant and should not be regarded as setting down any sentencing principles or used as a sentencing example for other shoplifting cases.