THE QUEEN v. LEUNG KIM-BOR

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 774 OF 1988

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J U D G M E N T

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1. These two appeals came before me on the 2nd December 1988. The appellants were appealing against prison terns of two years for attempted theft (pickpocket) in the case of LEUNG Kim-bor, and eighteen months imprisonment for theft in the case of TSANG A-sjoe. I allowed their appeals, reduced their sentences to twelve months each and indicated that is would give reasons later. I now do so.

LEUNG Kim-bor

2. This appellant who is deaf and dumb, with the aid of a special interpreter, pleaded guilty before the magistrate to the charge and admitted the following facts-:

"While inside the compartment of MTR from Wanchai to Admiralty, Deft spotted the victim and Deft walked closer behind the victim. Deft was seen holding the exh (1) as his sight cover with his left hand and he stood at the left of the victim and Deft used his right hand's index and middle finger to insert victim's left side trousers pocket. However, Deft did not succeed in picking anything at this time. Then the Deft moved his body to the right of the victim and used the same way to try to steal from the victim.

On seeing this, PW(1) and PW(2) went forward and revealed their police identity to declare the arrest. Upon checking, victim confirmed nothing was stolen and the exh (2) were seized from the Deft. Exh (2) was later tested by the PW(3) who certified that it was used to enter the MTR premises at 1630 hrs at Y MTR Station but it had no record of exit until the time of arrest.

Subsequently, Deft was charged with the offence at RAPU/K office.''

3. The appellant admitted his awenty-one previous convictions. In passing sentence of two years the Magistrate considered that this was the sixth sentence of two years' imprisonment that the appellant had received in the last ten years.

TSANG A-sjoe

4. The appellant pleaded guilty to the charge and admitted the following facts :-

"On 29.8.1988 at 1215 hrs, PW1 was walking outside 395 King's Road, G/F, North Point and saw accused walk pass and suddenly found her wallet stolen from her handbag. She alerted PW2 & PW3 who caught accused in vicinity and recovered $120-HK (Exhs b) in his possession. Later PW1 and PW3 recovered Exh (a & d) at the, vicinity which was covered by one plastic bag (Exh c). PW1 positively identifies accused at scene. PW2 & PW3 apprehended accused. Under caution, accused denied the offence."

5. He also admitted eleven previous convictions of which three were for pickpocketing, and pleaded for leniency.

6. The Magistrate in his Statement of Findings stated :-

"The Appellant pleaded guilty to Pickpocketing a wallet from a ladies handbag in Horth Point.

The usual sentence is 9 months imprisonment even for a first offender for this offence.

Since 1955 this appellant has had three convictions for pickpocketing, the last being in 1985.

As well he's had three previous convictions for theft and one for attempted theft. The latter being in October 1987 for which he received 15 months imprisonment.

I would have sentenced him to two years imprisonment the maximum I could give. I allowed a remission for his plea of guilty and sentenced him accordingly."

7. Mr Tsang who appears for both defendants submitted that the sentences were manifestly excessive and that the Magistrate failed to apply the usual tariff and paid undue regard to the appellants' respective records of previous convictions with the result that, both sentences were disproportionate to the gravity of the offences which were run of the mill pickpocketing offences.

8. He points out that in neither case were there any aggrevating features e.g. (1) no instruments used, e.g. razor blades or knives; (2) the appellant acted alone; and (3) there was no resistence to arrest.

9. Thus, says Mr Tsang, the usual tariff of between three to twelve months should apply and in support of this tariff, he quotes from the judgment of Yang, J.A. (as he then was) in Chan Ki-sai v, The Queer Crim. App. No.236/83.

10. In that case the appellant was twenty-two years old and had pleaded guilty to a charge of theft (pickpocketing) at the races. He had one previous conviction for pickpocketing and for which he was sentenced to six months imprisonment suspended for twelve months and at the time he was sentenced he was serving a sentence of two years imprisonment for a burglary totally unconnected with the current offence. The Magistrate had sentenced him to three months imprisonment. The Learned Judge, however, came to the conclusion that the normal tariff for this offence should be nine months imprionment and increased the sentence on the appellant to nine months.

11. In The Queen v. Kwan Siu-ying Mag. App. 327/84, McMullin, V-P; (as he then was) was dealing with a woman of fifty-five years of age who was convicted of a similar offence at a temple in Shatin and who was sentenced to eighteen months imprisonment. She had a lengthy record of previous convictions though they were considerably spaced out in time. Taking into account the decision of Yang, J.A. in the above mentioned case and taking into account the personal circumstances of the appellant, McMullin, V-P, reduced the sentence of eighteen months to twelve months' impriosnment.

12. Mr Tsang also refers to the case of Cheung Kwan v. The Queen Crim. App. 424 of 1980 where Rhind, J. allowed an appeal against a sentence of twelve months imprisonment in respect of a thirty--six year old man who stole a plastic bowl containing $34.20 from a hawker's stall in the middle of the day. The appellant pleaded guilty to theft and admitted a record including twelve previous convictions for offences involving dishonesty. The Learned Judge considered the twelve months sentence as being too long and substituted a six months sentence instead. He said :-

"It is a trite principle that a man is only to be sentenced for what he has done wrong, not for his record,"

13. In support of his contention that the Magistrate paid undue regard to the appellants' respective records in the present cases, Mr Tsang referred to R. v. Fraser [1982] 4 C.A.R. (S) p. 254; R. v. Queen [1981]3 C.A.R. (S) p. 245 and The Queen v. Chan Hon-kwung C. A. 218, of 1984.

14. Mr Maxwell did not seek to support the sentences.

15. Considered that the authorities relied upon by Mr Tsang supported his contention that on a plea of guilty, the normal tariff would be nine months imprisonment. The appellant should not have been further punished for his previous offences for which he had already served the punishment.

16. I considered that there were no aggravating features in these two cases. Had the appellants been convicted after trial, they could have expected to receive sentences in the region of fifteen months imprisonment. These sentences should be reduced taking into account all mitigating factors. In this case no allowance could be made for a clear record but the plea of guilty and the fact that the appellant operated alone and used no instruments were relevant factors.

17. Taking the above matters into account, I considered that the sentences imposed by the Magistrates in these two cases were excessive and I reduced both of them to twelve months imprisonment.