HKSAR v. TSANG WING YAN

HCMA 117/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 117 OF 2013

(ON APPEAL FROM ESCC 4397 OF 2012)

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J U D G M E N T

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1.  The Appellant had pleaded guilty in the Magistrate’s court to one charge of theft.

2.  The facts which were admitted was that on the day of the offence at about 10:00 pm, the victim in the case had left her handbag unattended on a table inside the bar and went to dance.  When she returned to the table at about 12:40 am, she found that her mobile phone and a black purse inside the handbag were missing.  The black purse contained about HK$1,000 cash, her document of identity and travel permit.  The manager of the bar was informed and the security staff was tasked with searching customers leaving the bar.  Upon the Appellant leaving the bar, she was spotted holding a mobile telephone, so the security staff then asked the Appellant to unlock the phone.  She could not do so and subsequently the victim identified the mobile phone as her’s.  The Appellant was also seen throwing some cash onto the floor which amounted to about HK$1,060.  A report was made to the police and the Appellant was arrested.  The black purse and its content were recovered near the entrance of the bar.  Under caution, the Appellant admitted taking away the stolen property and said that she threw away the purse and its contents because she only wanted to take the money.  Upon learning that the Appellant had a clear record, the Learned Magistrate called for a background report and remanded the Appellant in custody.

3.  Initially, the Learned Magistrate, after reading the background report, sentenced the Appellant to 8 months’ imprisonment. A review was sought and the Learned Magistrate after hearing submissions on the review, granted the Application for a review of sentence and sentenced the Appellant to 4 months’ imprisonment.  The Learned Magistrate also granted the Appellant bail pending appeal.

4. 0pt; margin-left:0cm;text-align:justify;text-justify:inter-ideograph;text-indent: 0cm'>4.  On appeal, Mr Cheung, on behalf of the Appellant, agreed that it is a serious offence but submitted that because there is no tariff for this kind of offence, the circumstances and the background of the Appellant is important.  In this case, positive good character had been put forward because prior to the offence, the Appellant, apart from having a clear record, had donated to World Vision for several months to support two children.  The Appellant had been gainfully employed after leaving school and is now aged 30, and had always, according to the background report, been a filial daughter and according to her family and friends, this present offence was totally out of character.

5.  The present offence was an opportunistic offence and she acted out of momentary greed because she had alcohol prior to this offence.  So Mr Cheung submitted, therefore, that the court seeing that there is no tariff, should, apart from considering the seriousness of the offence, take into account the background of the Appellant and not sentence her immediately to prison and should consider either a community service order or a suspended sentence.

6.  Ms Lo argued that the Learned Magistrate was fully aware of all the circumstances, particularly the Appellent’s background prior to sentencing and the Learned Magistrate was not wrong in considering that the case was serious and it is on a par with pickpocketing offences and therefore was correct in giving an immediate custodial sentence.

7.  It has often been said that sentencing is an art. It helps a sentencing judge to look at other offences of similar nature when coming to a proper sentence in a particular case.

8. 0pt;margin-right:0cm;margin-bottom:4.0pt; margin-left:0cm;text-align:justify;text-justify:inter-ideograph;text-indent: 0cm'>8.  First of all, I must say the Learned Magistrate was not wrong to say that this offence is serious.  That it is akin to pickpocketing offences because this was an opportunistic crime.  However, whilst looking at the crime itself , the Learned Magistrate, when considering sentence in this case, also should look at the background of the Appellant.

9.  In this case, I cannot say that the Learned Magistrate was entirely wrong in imposing an immediate custodial sentence. However, I do consider that the Appellant is aged 30 and have had a clear record up to now.  She comes from a family with humble circumstances, and from the background report, I can see a hardworking father and siblings.  The Appellant herself had, according to her mother, worked after leaving school and in fact the Appellant herself had not been any trouble to her parents.  To equip herself for better job prospects, the Appellant took up a course after work at night for a Higher Diploma in Fashion Merchandising.  According to the Appellant’s parent, she took care of her own schooling and other needs without causing them any financial burden.

10.  In this case, it is true that according to the background report, the present offence was totally out of character.  In the circumstances, I would therefore give a chance to the Appellant because I do accept that the alcohol must have lowered her common sense and rendered her susceptible to momentary greed.  Although I agree with the Learned Magistrate that this offence is too serious for a Community Service Order, however, I do not believe that the Appellant should immediately serve the sentence of 4 months’ imprisonment, so I shall suspend the 4 months’ imprisonment for two years.

11.  I will explain very briefly what it means, is that in the two years, if the Appellant does not commit another criminal offence, she will not need to serve this 4 months’ imprisonment.  If within the two years, the Appellant commits another criminal offence, then it is likely that she will have to serve this 4 months’ imprisonment on top of any other sentence for the other offence that may be imposed, so I am sure Mr Cheung will explain to the Appellant in greater detail what that means.

12.  The appeal has been allowed.  I see there is no reason to depart from the usual practice of the court in that costs follow the event.  The appeal is allowed, the costs will be to the Appellant to be taxed if not agreed.