THE QUEEN v. HUANG LIU KAO AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 248 OF 1987

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JUDGMENT

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1. The two appellants were each found guilty on the 25^th day of February 1987 of the offence of loitering, contrary to section 160(1) of the Crimes Ordinance, Cap. 200, and were each sentenced to four months’ imprisonment by the Magistrate.

2. The first appellant now appeals against both conviction and sentence, whilst the 2^nd appellant appeals against sentence only.

3. On the 17th day of August last year, at about 4:15 p.m., the two appellants were observed by two police officers in plain clothes inside the Lane Crawford Store in Tsim Sha Tsui to approach a jewellery counter and the 2^nd appellant then stood on the right side of a lady shopper. He then produced from his waistband a plastic bag, which he used as a shield to mask the handbag strung from the lady’s shoulder. At the same time, the 1^st appellant looked at him and squeezed himself against the lady. The shopper however walked away.

4. The 2nd appellant then folded up the plastic bag and kept it in his pocket. Both the appellants then moved to a cosmetics counter and the same kind of activity took place. They were unsuccessful in what they were going to do and hurriedly walked out of the Store. They were stopped by the police officers and after searching the appellants, found the plastic bag on the 2nd appellant. When he was asked why he had gone into the Store, he replied that he was there to purchase perfume for his financee, and after further questioning admitted that he was there together with the 1^st appellant. The latter was also questioned and he stated that he was in the Store to buy towels and shampoo but claimed that he did not know the 2^nd appellant. These explanations were not accepted by the police officers as being satisfactory and they were then arrested. At the trial before the Magistrate, the 1^st appellant denied the allegations which were made against him, claiming that he was unaware that the lane Crawford Store was a luxury one, and after discovering the prices of the goods sold there decided to leave but were stopped by the police. The Magistrate accepted the evidence of the police officers and found that the appellants were acting jointly in a ‘handbag picking’ operation. In this appeal, the 1^st appellant denied that he loitered in the Lane Crawford Store and that he only went into the Store to have a look as there was a sale. In my judgment, the Magistrate rightly convicted the appellants of the offence of loitering and the 1^st appellant’s appeal against conviction is accordingly dismissed.

5. It was submitted on behalf of the appellants with regard to the sentences imposed by the Magistrate that they were wrong in principle, he having taking into account the matter of general deterrence and had not given sufficient consideration to the fact that these were the first convictions against the appellants for any offence. Counsel referred to the cases of Ho Kau v. R.[1] and Siu Hei-man v. R.[2] where the question of deterrent sentence imposed on first offenders were discussed. These cases follow the principles enunciated in R. v. Curran where MacKenna, J. stated “As a general rule it is undesirable that a first sentence of immediate should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. Th0 length of a first sentence is more reasonably determined by considerations of individual deterrence”. These principles have been adopted in Hong Kong by the Court of Appeal in R. v. Leung Sum, R. v. Garthwaite and in Siu Hei-nam v. R. In R. v. Garthwaite, the principle was expressed in the following terms: “…… it is not desirable that the first sentence of imprisonmer passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appellant did."

6. Mr. Cross, who appears for the Respondent has very kindly informed me that the usual sentences imposed on first offenders in respect of this type of offence were either a fine or imprisonment for one or two months. It seems to me therefore that the sentences imposed on the appellants were manifestly excessive and accordingly, their appeals are allowed and the sentences reduced to the extent that they be released today.