ATTORNEY GENERAL v. CHUNG KUN WAI

Headnote

Sentence for persistent shoplifter

BETWEEN

Date of delivery of judgment: 7 July 1988

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J U D G M E N T

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Cons, Ag. C.J.:

1. The Respondent to this application pleaded guilty to a charge of shoplifting.

2. He had walked into Watson's the Chemist in Central, taken two tubes of ointment valued at $21.80 and placed them in his pocket. He then wandered around the shop for about one minute and left. Outside the shop he was approached by the staff. He ran away but was chased and caught. Druing the chase he threw away the two tubes of ointment which were picked up by one of the pursuing staff. On arrest he was found to have cash in his pocket to the extent of $1,834.

3. The Respondent is a man aged 51. We are told that he has a wife and three children still at school. He is unemployed. On the other hand it is not his first offence of shoplifting. In the space of 3 weeks last year he was convicted of two offences which were certainly of shoplifting and a third which is merely recorded as theft. For the first two offences he was fined $500 on each occasion and for the third a fine of $750.

4. The Magistrate, Mr. Boa, before whom he pleaded guilty, thought that the circumstances would be appropriately met by a fine of $2,000, if given only a short time within which to pay.

5. With leave of the Chief Justice the Attorney now asks us to review the sentence on the grounds that it was manifestly inadequate and wrong in principle.

6. In the realm of shoplifting, the circumstances of the offence and the circumstances of the offender vary so much that it is quite impossible to suggest any general policy of approach, save that we may mention in passing, in deference to comments by counsel, that there are indeed cases in which an immediate custodial sentence is appropriate, even for first offenders.

7. 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. Counsel has referred us to the English cases of Grodinsky⁽¹⁾ and Power⁽²⁾ in support and we may quote the brief comment of the previous Chief Justice in this jurisdiction, when dealing with a man who had 11 previous convictions⁽³⁾ -

"It must be made clear to him yet again that those who steal things from shops must expect to be sent to prison."

8. With respect to the Magistrate he overlooked that principle. Despite the favourable picture that Mr. Wai on behalf of the Respondent ably tried to paint of his client, we are satisfied that that time has come for the Respondent. We have been told of no particular features that mitigate on his behalf. It is his fourth offence. In our view only a prison sentence is now appropriate. It does not necessarily have to be of great length. We respectfully concur with the advice of Lawton L.J. when he invited the attention of judges and magistrates in England to the value in this respect of a short custodial sentence⁽⁴⁾.

9. In the particular circumstances of this case - and we would reiterate that each case must be considered individually - we think the proper sentence should have been one of  3 months' imprisonment. There must then be a discount in view of the nature of these proceedings.

10. For these reasons we allow the application for review, we set aside the fine imposed and order the money to be repaid to the Respondent. In its place we impose a sentence of 2 months.

⁽¹⁾ (1979) 1 Cr.App.R. 305

⁽²⁾ ibid 255

⁽³⁾ The Queen v. Chuen Chi Lam unreported 5th November 1986 Mag. App. 1074/86

⁽⁴⁾ R. v. Roth (1980) 2 Cr.App.R. (S) 65