HKSAR v. NG KIN NAM

HCMA340/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.340 OF 2001

(ON APPEAL FROM ESCC 861 OF 2001)

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J U D G M E N T

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1. The appellant was sentenced on 14 March 2001 of one charge of theft to which he entered a plea of guilty. He was sentenced to eight month's imprisonment and now appeals that sentence.

2. The facts which were agreed at the trial were that at Marathon Sports Company in Chai Wan, a witness (one of the staff of the shop) saw the appellant taking one pair of "Addidas" sports shoes from a display rack and putting them under his jacket and then leaving the shop without payment. The shop assistant stopped the appellant outside the shop and recovered the shoes from him. The appellant asked for a chance and the matter was reported to the police. The appellant was found to have $85.60 in his possession at the time of the offence. He was cautioned and, having been cautioned, admitted the offence.

3. Mr Chan for the appellant raises two grounds of appeal. Firstly, he argues that the appellant's criminal record was not such as would have justified the learned magistrate to impose an enhanced penalty. He set the three conditions necessary for enhancement of the penalty. Firstly, that it only applies when the criminal record of the appellant is appalling. Secondly, there must be hallmarks in respect of the offences of a professional criminal and thirdly, the enhancement factor is minimal in respect of crimes which are not grave in nature but escalating to a greater degree when the crimes are grave. The starting point in respect of the question of enhancement of penalty is the case of HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830 where Stuart-Moore V-P said :

" 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."

4. From this passage, Mr Chan raises two propositions, one the offence has to be one which has been committed a number of times before and in his words, an appalling record, and secondly that they must be grave. I do not read that from the passage that I have just cited. The words used by Stuart-Moore V-P are "an enhancement of sentence is often unnecessary on the first or even sometimes a second-time offender". However, he leaves open the question of offences which come thereafter. In the case before me, although they are spread over a substantial period of time, the appellant has six previous offences which Mr Chan concedes are each for the offence of shoplifting. He has regularly been in prison for terms up to six months' imprisonment for that offence. I do not consider that an offence has to be appalling in the sense that there are a long and close string of the same offence but it can be sufficient if there is a lengthy and persistent pattern of conduct where the same offences committed over again over a period of time which may be of some considerable length.

5. In respect of the first ground raised by Mr Chan, I find that the criminal record admitted by the appellant is one which fits the requirement in the case of Chan Pui Chi for a persistent offender.

6. The offence of shoplifting is argued by Mr Chan as to be one which is not grave. It is not grave in the sense that frequently the amount taken is not high and there is no damage done to the person from whom he has taken over physical nature. However, it is well known in this court that shoplifting is a persistent and frequent crime in Hong Kong. The gravity of the crime, in my view, must be taken into consideration in determining the amount by which the sentence should be enhanced but does not remove from the court's entitlement to enhance the sentence even where the offences are not grave in nature.

7. The third matter raised by Mr Chan is whether or not these were offences professionally conducted. It is very hard, of course, to define what he means by professional in this context. Any person who persistently thieves in shops by stealing items from shelves and attempting to leave the premises without paying for them must develop by repetition a certain expertise.

8. I am satisfied that the three criteria set out by Mr Chan which I accept have bearing upon the approach to be made by magistrate are properly satisfied in this case and it was a fit case for the magistrate to enhance the sentence.

9. The second ground of appeal raised by Mr Chan is that even if an enhanced sentence was appropriate, the degree of enhancement was manifestly excessive having regard to the usual sentence imposed in offences of this nature. With this, I have rather more sympathy. It seems to me that the starting point of 12 months taken by the learned magistrate in this case was too high. The degree of enhancement appropriate, given the previous criminal record of the appellant, taken together with the manner which the offence was committed and the nature of the goods taken did not, in my view, warrant a starting point of 12 months. It did, however, warrant a starting point of nine months and this appeal is allowed and the sentence is varied to the extent that a term of six months' imprisonment is imposed in lieu of that imposed by the magistrate.