HKSAR v. LAM KWAI WA

HCMA1078/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1078 OF 2002

(ON APPEAL FROM ESCC 2980 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The 42-year-old appellant was convicted on his own plea of an offence of theft contrary to section 9 of the Theft Ordinance, Cap.210.

3. The facts of the case were that the appellant stole two packets of cakes from a cake shop, which were in total valued at about $20. The magistrate sentenced the appellant to four months' imprisonment on the basis of his plea of guilty after taking a starting point of six months' imprisonment. In taking that starting point of sentence the magistrate, as stated in his Reasons for Sentence, considered the appellant's history of similar offences.

4. The appellant, of a total of 31 previous offences, had 11 previous theft related offences. That history stretched back to 1976. He has spent a considerable part of his life since then in prison as a result of his criminal activities.

5. Mr Yu, on behalf of the appellant does not argue that a sentence of imprisonment is inappropriate. He simply complains that the period of imprisonment imposed is too severe. He points to the value of the property stolen and says that the value of the property being trivial, the starting point of sentence of six months' imprisonment was too high and was disproportionate to the seriousness of the offence.

6. In his Reasons for Sentence the magistrate said in this regard :

"The Defendant committed the offence brazenly and cynically. His history of repeated offences justified, in my view, the adoption of a higher starting point for sentence."

7. In so saying the magistrate was obviously taking into account the principle enunciated in HKSAR v. Chan Pui Chi [1999] 2 HKLRD at 830, where Stuart-Moore V-P said concerning persistent offenders :

" There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected."

8. In the present case, the appellant has committed theft or theft related offences on 11 prior occasions. He is, without doubt, a persistent offender. The offences he has committed within those 11 prior occasions have ranged from robbery, through burglary to shop thefts similar to the present case.

9. It may well be that shoplifting albeit a prevalent and, in aggregate, a costly offence so far the community of Hong Kong is concerned is not a particularly grave offence taken in isolation and in comparison to other offences in the spectrum of criminal culpability. Nevertheless that does not remove such cases from the consideration inherent in the principle enunciated in Chan Pui Chi. As I understand that principle it is not that an offender is being sentenced at a higher level on the basis of his prior criminal record, but that his sentence should be enhanced on the narrower basis that his prior history in repeatedly committing a certain category of offence demonstrates that the personal deterrence factor of previous sentences has been, in that offender's case, insufficient to deter him from again committing that type of offence. Considerations of preventing the offender from further offending in that way and the protection of the public then justify an enhancement of the sentence which would otherwise have been imposed.

10. Such a principle, if it is a valid principle, must apply over the whole spectrum of criminal offences, though the graver the offence then the more necessary for the protection of the community that there be such an enhancement of sentence in respect of persistent offenders regarding that category of offence.

11. In the present case the magistrate, given the appellant's persistence in committing property offences, was entitled to take an enhanced starting point of sentence. In doing so though, he did not say to what extent he had enhanced that starting point.

12. For this sort of offence, even given the trivial value of the property taken, where an immediate custodial sentence of imprisonment is appropriate, a starting point of about three months' imprisonment would not be excessive. In taking an enhanced starting point of sentence of six months' imprisonment, the magistrate therefore apparently enhanced the starting point of sentence he would have otherwise imposed by about three months. That is an enhancement of about 100%.

13. In the case of HKSAR v. Tang Wing Cheung, CACC146/2002, the appellant pleaded guilty to an offence of burglary in domestic premises. The starting point of sentence for such an offence is, in the normal course, three years' imprisonment. The trial judge considered the poor record of the appellant, which involved many similar previous offences, and the fact that the offence before him had been committed one week after his discharge from prison, as good reason to enhance the appellant's starting point of sentence, relying upon the principle of Chan Pui Chi. He then proceeded to enhance the starting point of sentence to one of 41/2 years' imprisonment. That represented an enhancement of 50%.

14. Yeung JA (giving the judgment of the court) said :

"8. We have repeatedly said that persistent offenders who show no interest in attempts to rehabilitate themselves will face longer sentences and the starting point will need to be increased to reflect such aggravating feature.

9. In our view, the applicant clearly falls with the category of persistent offenders and the judge was right in describing him as 'a danger and threat to society.'

10. On the other hand, the case itself is clearly not a very bad case of the type. No force was used and the victim was not threatened in any way. It was an entirely opportunistic offence.

11. We are of the view that an increase of 50% is excessive, as fairly conceded by Mr. Madigan, Senior Government Counsel. An enhancement of sentence by as much as 50% on account of the previous convictions of the defendant is wrong in principle."

15. The court went on to say that an appropriately enhanced starting point of sentence in the circumstances of that case would have been three years six months' imprisonment. That represented an enhancement of six months above the otherwise appropriate starting point of three years' imprisonment.

16. Whilst a mathematical quantification of such matters is perhaps not wholly desirable, each case depending to a large extent on its own facts, that represents an enhancement of something over 16%.

17. It seems to me that, as a matter of logic, the level of enhancement must depend on a number of factors peculiar to a particular defendant and the offence he has committed. Those factors would include primarily, firstly an assessment of the gravity of the category of offence involved and secondly an assessment of the degree of the defendant's persistence as demonstrated by his criminal record.

18. Obviously the more grave the offence the greater the importance which may be attached to considerations of protection of the public by prevention of future offending by the particular defendant. The greater persistence the defendant has shown in committing the particular category of offence then the greater again the justification for enhancement of penalty so as to discourage him from future offences of that sort.

19. Nevertheless in my view two things must not be lost sight of. The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.

20. The question of the appropriate degree of enhancement is the real issue so far as the appellant's complaint before me is concerned. As I say in the present case a proper starting point of sentence prior to enhancement would have been, on the facts of the case and in view of the value of the property taken, no more than three months' imprisonment.

21. Given the appellant's prior persistence in offending in this way an enhancement of that starting point to one of 15 weeks' imprisonment would have been appropriate. That level of enhancement is in line with that applied in Ng Chi Man [1999] 1 HKC 632. It is more than that applied in Tang Wing Cheung and that applied in Chan Pui Chi where a persistent drug trafficker had his sentence increased from 13 years to 14 years at trial and in respect of which the Court of Appeal commented that the degree of enhancement could well have been greater,.

22. In the present case the degree of enhancement I propose represents an, approximately, 25% increase above the starting point otherwise appropriate for an offence of this gravity. After taking into account the sole mitigating factor of the appellant's plea of guilty, a final sentence of 10 weeks' imprisonment would have been appropriate.

23. Accordingly, the appeal is allowed and the sentence of four months' imprisonment is set aside and one of 10 weeks' imprisonment is substituted.