R. v. SIN WAI YUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.371 of 1996

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate at Tuen Mun to one offence of theft. The facts admitted by the appellant are these. He was stopped by officers on anti crime patrol at a commercial complex. He was found to have on him five bottles of shampoo, the total value of which was $349.50. The goods belonged to Watson's. The appellant admitted to the arresting officer he stole the shampoo. In mitigation, he told the magistrate that he had leg problem and a 10 year old daughter and relied on public assistance. He has a criminal record of one robbery, one burglary and four theft. His last conviction was for a drug offence for which he was sentenced on 1st April 1995 to eight months imprisonment. The magistrate sentenced him to nine months imprisonment.

2. In sentencing him, the magistrate said that it was apparent that he was a drug addict and having regard to his record, the magistrate said :

"I took the view that a rather lengthy imprisonment term was needed to put the message across the Appellant that if he did not mend his ways, he could expect more lengthy imprisonment terms, and this one was no less than the one he last received."

3. He now appeal against sentence. Mr Wilson Chan for the appellant submitted that nine months imprisonment was manifestly excessive having regard to the appellant's full and frank admission of his guilt to the police.

4. Mr Chan referred me to a number of authorities on sentencing shoplifters. In R. v. Chiang Wu Ming Hsiang, [1989]2 HKLR 383, the appellant was sentenced to four months imprisonment for shoplifting which involved 20 odd items worth $3,882. It was her first offence. She pleaded guilty. On appeal, Bewley J. held that except where there was evidence of planning or involvement, custodial sentence should not be imposed on a first offender of shoplifting. A fine of $2,000 was substituted.

5. The next case is R. v. Mallqiu Rojas Gima Sussy, Mag. App.602/95, where a sentence of 18 months imposed on the appellant who obviously acted in concert with others in stealing from a shop was reduced to 15 months purely on account of her plea of guilty.

6. In A.G. v. Chung Kun Wai, [1988]1 HKLR 91, the Court of Appeal held that there was no general approach to sentencing shoplifters and that :

"... there are indeed cases in which an immediate custodial sentence is appropriate, even for first offenders. The position is much the same with regard to a second or even subsequent offence. But we agree with Crown Counsel that there does come a time when an offender's record becomes such that a prison sentence is inevitable."

7. From the above propositions, in the present case, having regard to the appellant's record, the question of a non custodial sentence was entirely out of the question.

8. In R. v. Sit Kong Kam, Mag. App.502/94, Keith J. referring to Chung Kun Wai, dismissed an appeal against sentence of one month's imprisonment and a fine of $1,000 imposed on a shoplifter who had previous convictions for theft and assaults and who had planned and acted with others in carrying out the theft.

9. The sentence imposed by the magistrate may be severe but in the light of the authorities and his record, it cannot be regarded as manifestly excessive or wrong in principle. The appeal against sentence is dismissed.