THE QUEEN v. CHU KWOK HUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 569 OF 1988

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BETWEEN

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J U D G M E N T

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1. The Appellant was convicted in respect of two offences arising out of a shoplifting venture. On this appeal he appeals against the sentence which was imposed only in respect of the shoplifting offence for which he was sentenced to imprisonment for eighteen months.

2. The brief facts put before the learned Magistrate disclosed that the Appellant working together with another person stole their three pair of leather shoes from a department store. The method of stealing was such that the Magistrate concluded and his conclusion is not challenged that this was a "professional shoptheft expedition".

3. The Appellant pleaded guilty as Miss Pinto who appears for him today points out on his first appearance before the court. He has a criminal record beginning in 1977 totalling eleven, previous convictions. Seven of them are for offences involving an element. of dishonesty. Six of the convictions were of theft, two of which were certainly for shoplifting. He has had the benefit of a suspended sentence and on the last occasion in February 1987 he was sentenced to imprisonment, on two charges, one sentence being six months, and the other three months but thesentesces were ordered to run concurrently.

4. I have been referred to two cases, one a decision of the court of appeal where a fourth time offender for shoplifting was sentenced to three months imprisonment. The Court of Appeal thought that was the appropriate sentence. However in that case the offender had not previously served a term of imprisonment.

5. The other case to which I also referred was the Queen v. Chan Chi-man (Magistracy Appeal 488/1986). In that case, the Appellant was convicted of shoplifting and sentenced to eighteen months imprisonment. On appeal the sentence was reduced to one of the imprisonment for twelve months. In that case the learned Judge had before him some statistics showing that there had been an increase in shoplifting offences and that shoplifting was becoming a serious problem. Because of that he said that it was not uncommon for sentences of imprisonment for nine months to be imposed for shoplifting offences even in respect of a first offender. Nevertheless, the learned Judge came to the conclusion in that case that the sentence of eighteen months was excessive and he agreed vith the suggestion of crown counsel that the sentence should have been between six months and nine months but as there was an aggravating feature in that the offence was committed within a month of the offender's release from prison for theft the Judge thought the appropriate sentence should be twelve months.

6. Miss Pinto in her submission contends that the element of professionalism on the part of this Appellant should be equated with the aggravating feature of commission of an offence soon after release and that therefore twelve months would be the appropriate starting point on a plea of not guilty. On a plea of guilty the appropriate sentence should therefore be imprisonment for nine months.

7. I do not agree with the submission that the element of professionalism in this case is an aggravating feature to the same extent as the circumstance in the Chan Chi-man case. I think that the learned Magistrate was quite right to treat this offence, committed in company carefully planned and apparently skillfully carried out, as an offence warranting a sentence in excess of twelve months.

8. It is true that the Appellant being unrepresented in the Magistrates Court said little for himself by way of mitigation. He did say, however, that hisfellow offender was led to commit the offence at the Appellant's instigation. The learned Magistrate took that into account but I think that he has not given the Appellant a sufficient discount on the basis of the remorse shown by his plea of guilty coupled with that plea in mitigation. Because of his previous record, he is, of course, now at the stage where he is not entitled to the discount given to a first offender or to a person with a record more attractive than his.

9. Taking all that into account, I allow the appeal to the extent of quashing the sentence of eighteen months and substituting therefor a sentence of imprisonment for fourteen months.