HKSAR v. NGAI KING YING

HCMA 622/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 622 OF 2003

(ON APPEAL FROM ESCC 1398/2003)

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of Theft and was sentenced to 2 months' imprisonment. She appeals against that sentence.

Facts

2. The admitted facts were that inside Pricerite Store in Causeway Bay the Appellant was seen taking some tape, a stainless steel vacuum flask, four light bulbs and an adaptor, which she placed inside her bag, and a chopstick holder, which she paid for at the counter. She was intercepted outside the store and admitted to stealing. The items involved were worth $100.

Personal Circumstances & Mitigation

3. The Appellant is aged 49, a housewife and a mother of three. She has had 10 previous convictions over the past 30 years. Half of these were for Theft and half of these were for Obtaining Property by Deception. The Theft convictions can be dated back to 1973, 1980, 1983, 1995 and 2000. Those for Deception were from one case in 1975. For her transgressions she had been fined, bound over, put on probation and given a suspended sentence.

4. As is obvious from the reports before the Magistrate, the Appellant has had a long history of dysthymia and kleptomania. She is also assessed to be functioning on borderline intelligence. The deaths of her bosom friends, her menopause, the SARS outbreak that affected her children's school-break from abroad and her sister's divorce further aggravated the situation before she committed the present offence.

5. Given the Appellant's record and mental condition, counsel conceded that probation and community service were out of the question. After some initial hesitation, he urged the Magistrate to impose a term of imprisonment but suspend it for as short a period as possible.

6. The Magistrate, after expressing some understandable doubt as to whether the Appellant was conscious of what she was doing whilst in the act of stealing, but did not reject the thrust of the reports, saw in the end no justification for a suspended sentence. Nevertheless, he conceded to counsel's request and put the Appellant on bail to see if "another court may take a different view".

The Present Appeal

7. Without suggestion any criticism of the Magistrate for one moment, I do take a different view.

8. From what I understand, the Appellant has a supportive husband. She is aware of her problem and has had and will continue to look for treatment. Her record, though bad, is far from the worst that these courts have seen. Her past convictions were spread out which suggests that, with help and effort, she could put her condition under control. She has never at this mature age been incarcerated.

9. Over all, the Appellant presents a difficult sentencing exercise. There are inevitably different angles and approaches. Personally, I am persuaded to give her one more chance, a chance that she and her family will nevertheless have to work hard to make meaningful. If they do not, the Appellant will sooner than later find herself in a bigger predicament.

10. The appeal is allowed. The sentence of 2 months' imprisonment is upheld but suspended for 2 years.