HKSAR v. DUONG DUC PHONG

HCMA284/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.284 OF 2001

(ON APPEAL FROM ESC 662 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 26 February this year of one charge of theft. He was sentenced to six months' imprisonment. He now appeals against that sentence.

2. The facts agreed were that on 24 February 2001, the appellant entered a shop owned by Marks and Spencer (HK) Ltd at Times Square. He was carrying with him a plastic bag. He took from a display shelf a black jacket which he placed into the plastic bag and attempted to leave the premises. It was pointed out to me that in addition to taking the jacket he took the hanger upon which it was placed so as to avoid the appearance of an empty hanger in the shop to alert the staff of the theft. He was stopped outside the shop where he dropped the plastic bag containing the jacket on the floor and attempted to flee. He was stopped by an employee and a report was made.

3. The magistrate, in his Reasons for Sentence, said :

"The offence was committed cynically and with forethought by the Defendant. This type of offence is extremely prevalent and particularly so in large department stores in Times Square.

Because of the prevalence of the offence and the brazen manner in which the Defendant committed it I took 9 months imprisonment as the starting point for sentence. I allowed a reduction of one-third for the defendant's plea and clear record."

4. The appellant argues that the sentence was wrong in principle, in that the magistrate had imposed a deterrent sentence. I accept the arguments of Ms Lee, for the appellant, that it is inappropriate in respect of a first offender to impose a sentence of deterrence personally upon that offender. There is, however, a principle that a sentence may be imposed where the offence is one which is prevalent in a particular area or of a particular prevalent nature. That is not a deterrence to a particular individual but a general deterrence in respect of the commission of that type of offence or an offence in that particular area. This case falls within that category.

5. The magistrate, I am satisfied, would know the frequency of this type of offence in this type of store in that area. It is that prevalence which he took as an aggravating factor, not the individual circumstances of the appellant. This ground must fail.

6. The second ground of appeal is that the sentence is manifestly excessive and ought to be reduced. Miss Poon, for the respondent, concedes that it is high but argues that a court should only interfere when the sentence is so high that it is manifestly excessive. With this I must agree. I agree that it is on the higher side in respect of a first offender, however, it is not manifestly excessive. In all the circumstances, the second ground of appeal must fail and the appeal is dismissed.