THE QUEEN v. HO TAK MUI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 351 of 1991

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BETWEEN

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J U D G M E N T

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1. On the 22nd February 1991, the appellant was found guilty after trial of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. In the particulars of the charge it was alleged that she stole one black handbag, one wallet, cash $4,210.50, one Danishkroner banknote, one ID card and one Hang Seng Card, the properties of female YIM Lai-ngor. She was sentenced to 18 months' imprisonment. She now appeals against conviction and sentence.

2. The main ground of her appeal against conviction is that the learned magistrate erred in that he refused to allow an adjournment to enable the defendant (appellant) to obtain private legal representation. Mr Allan, who appears for the appellant, points out that she made he application on the day of the hearing and that she was only requesting a short adjournment. The application was made on the 22nd February 1991 and she was saying that her lawyer would not be back in Hong Kong until the 27th. Therefore, says Mr Allan, the application was for short period of only five days. Although no solicitors were present in court at the time when she made her application, this was apparently a deliberate decision on her part to save herself the expenses of having a lawyer present on that occasion. She had already instructed solicitors to represent her at the hearing, if it were adjourned. Mr Allan argues that the magistrate adopted the wrong test when he said at p.7 of the record:-

"Application refused. Court's duty is to ensure that all cases proceed without delay."

It is not clear from the record whether in fact the Crown was opposing the application for an adjournment, he says. Mr Allan asks that the appeal be allowed and the case remitted to the magistrates court for retrial.

3. There are two other grounds of appeal, but Mr Allan only advances one further argument which must relate to the second of those two grounds which is that the learned magistrate erred in that he convicted against the weight of evidence. He argues that the defendant was only asked six questions in cross-examination,

4. With the greatest respect to Mr Allan, it cannot be said that the learned magistrate erred in that he convicted against the weight of the evidence. That evidence was summarised in the Statement of findings as follows:-

"PW1 for the prosecution was PC23025 who was on plain clothes duty on 28th January 1991 at around 3.35 p.m. in the Pei Ho Street area on an antipick-pocketing partrol. He was with his colleague, PC45083. At Pei Ho Street near Fuk Wah Street, he noticed a woman about 40 years of age hanging around the entrance of the MTR Station at Pei Ho Street and Fuk Wah Street. PW1 identified this woman as the Appellant in the Court. The Appellant was observed by PW1 to be walking back and forth and had stood behind several persons at the hawkers stalls there, and she was not choosing any goods from any of the stalls. The Appellant was under observation for about 8 minutes when she was seen to have walked up to another woman who had a black handbag strapped over her right shoulder: The Appellant was observed by PW1 to use her right hand to pull open the zip of this black handbag and take out a red wallet from it. When she took out this wallet, she immediately put it under her left arm pit in her jacket, and then turned to walk away hurriedly. PW1 then ran forward and stopped her. The wallet was found under her arm pit inside the jacket. The wallet was taken out and while PW1 had it, the woman from whom the wallet was taken , came up to PW1 to claim it. This woman, the victim, told PW1 that her identity card and photograph were in the wallet. PW1 checked and did find the victim's identity card and her photograph in the wallet. The Victim's name was Yim Lai Ngor. The appellant was present when the victim came to make her claim of the wallet. The Appellant was arrested for the offence of pick-pocketing. In the police station, the wallet was found to contain the victims identity card, a Hang Seng Bank Card of the victim's, HK$4,210.50 in cash, one Danish Kroner bank note of 100 kroners denomination and some other personal papers belonging   to  the victim.PW2, Madam Yim Lai Ngor gave evidence that on 28.1.1991 at about 3.00 p.m., she was in the vicinity of the MTR Station at Pei Ho Street and Fuk Wah Street with a friend doing some shopping. She had her handbag with her and while she was buying something, she felt something and saw a person hurrying by. A man also ran passed her and she did not know what had happened .She looked and saw a man took out a wallet from the inside of the left side jacket of a woman. She identified the man as PW1 and the woman as the Appellant in the Court. She felt that the wallet PW1 took out from the Appellant looked like her own wallet which she had used for many years. She checked her handbag and found that the zip of her handbag had been opened by someone and her wallet missing. She later laid claim to the wallet."

5. The learned magistrate then summarised the evidence of the appellant and then made his findings as s follows:-

"I had no hesitation to accept the evidence of PWl and PW2 to be truthful and reliable evidence. I had ample opportunity to, observe them and the Appellant when they were giving evidence in Court. PW1 and PW2 impressed me as being honest and reliable witnesses. On the other hand the Appellant did not impress me as being a truthful witness. I disbelieved her and rejected her evidence where her evidence was in conflict with those of PWl and PW2. I was satisfied,beyond reasonable doubt that the Appellant had stolen PW2's wallet from her handbag in the manner" described by PW1 and I found the Appellant guilty of the offence in the charge and I duly convicted her."

6. It is difficult to see how in these circumstances it can be contended that the conviction was against the weight of the evidence.

7. The only matter that concerned me was the refusal of the magistrate to adjourn the matter. It might have been wiser in the circumstances if an adjournment had been granted. However, it was a matter within the discretion of the magistrate. The length of the adjournment and the availability of witnesses are matters of relevance in an application of this sort. It doesn't just follow that because a lawyer is available in five days time that there will be a hearing, date available at that time. I do not know what the state of the diary was in the magistrates court, or whether there were any difficulties regarding the presence of witnesses.

8. Be that as it may, it is clear that the overriding consideration in matters of this sort is whether justice has been done to the unrepresented defendant. This is apparent from such cases as The Queen v. YU Lap-wai Magistracy Appeal No. 866 of 1986, (1987) HKLR 446, Criminal Appeal 515 of 1985, The Queen v. LAM Chi-wai, CHAN Leung v. The Queen High Court Criminal Appeal No. 1205 of 1978 and Frank Robinson v. The Queen [1985] WLR 84 (Privy Council).

9. I agree with My Wong, on the basis of these authorities that the appeal should not be allowed for failure to adjourn.

10. It appears manifest from the record that the magistrate at each stage of the hearing explained the procedure and rights of the appellant to her and that she understood. Not only did she conduct a cross-examination which was pertinent, but she also gave evidence in her own defence which was relevant.

11. I can find nothing wrong with the way in which the magistrate addressed himself to the evidence and assessed the credibility of the witnesses. The appeal against conviction is therefore dismissed.

Appeal against sentence

12. The learned magistrate stated his reasons for sentence as follows:-

"The Appellant had not shown remorse whatsoever and she had committed the offence in a crowded area which was at the entrance of an MTR Station where there were many stalls or hawkers. The normal tariff for sentencing pick-pockets is an imprisonment term of 12 - 15 months. Where there are aggravating factors, a heavier sentence would be imposed. The Appellant here was under an effective suspended sentence of 8 months imprisonment suspended for 18 months imposed on 31.1.90 for pick-pocketing. I did not activate her suspended sentence but decided to impose a heavier than normal tariff sentence. TheAppellant in the 9 previous criminal convictions for pick-pocketing  was sentenced as follows:-

I was not sentencing the Appellant for  her previous bad record for similar offences but in high lighting her previous convictions for pickpocketing and the sentences imposed on her, I see her as a menace to the ordinary men and women on the street, and there is a need to impose a deterrent sentence. A longer sentence could be achieved by imposing, say a 12 - 15 months imprisonment term and to activate her 8 months imprisonment under suspension to run consecutively, thus making a total of 20 - 23 months imprisonment. I decided against that and gave her 18 months instead for the present conviction in hope that this would serve as a deterrent to her in the future."

13. Mr Allan complains that in referring to the appellant as a menace to ordinary men and women on the street, the magistrate was  sentencing her for her past record.

14. Mr Wong, on the other hand, argues that by adopting the course he did, the magistrate in fact imposed a lesser sentence on the appellant than he would have done had he activated the suspended sentence.

15. In my judgment the magistrate, was wrong to take the course which he did. Section 109C(1) of the Criminal Procedure Ordinance provides that:-

Clearly, the learned magistrate should have activated the suspended sentence. There are four courses open to a magistrate, one of which must be adopted Gordon (1969) 53 C.A.R. 307. Three of the options fall short of full activation, but none may be chosen unless full activation would be unjust. There would have been nothing unjust in this case if full activation had occurred.

16. When a defendant is convicted of an offence committed during the operational period of a suspended sentence, the court must decide first the sentence to be imposed for the latter offence and then decide how to deal with the suspended sentence, Brown [1969] CR LR 20, Ithell [1969] 1 W.L.R. 272. The appellant has a dreadful record of previous convictions and is clearly an unrepentant professional pickpocket. She has been sentenced in the past with both compassion and severity and neither ways of treating her have had any effect at all.

17. In my judgment, it is an aggravating circumstance that she should commit this offence during the operational period of a previous sentence for precisely the sameoffence. Further more, this offence was committed in the vicinity of the entrance to the MTR Station at Pei Ho Street and Fuk Wah Street. That is also an aggravating factor. See Magistracy Criminal Appeal No. 1162 of 1990 The Queen v. VY Van-kien and Magistracy Criminal Appeal No. 1179 of 1990 The Queen v. PHAM Van-hoa.

18. In all the circumstances, I do not consider that the sentence of 18 months' imprisonment imposed upon her in the circumstances of this case was either manifestly excessive or wrong in principle.

19. Under s.119 (d) of the Magistrates Ordinance, I am empowered to make such order in the matter as I think just and by such order exercise any power which the magistrate might have exercised.

20. I consider that it would be just to make an order activating the suspended sentence as this is an order the magistrate could and should have made. As the general rule is that an activated suspended sentence should be made to run consecutively to that imposed for the current offence (Brown (1969) CRIM L.R. 20, Ithell [1969] 1 W.L.R. 272) I order that the sentence of 8 months should be ordered to run consecutively to the current sentence. The appellant is fortunate that the suspended term was such a short term. It could well have been for 15 months.

21. The appeal against sentence is therefore allowed only to the extent that the suspended sentence is activated and ordered to run consecutively to the 18 month term imposed for the current offence making a total sentence of 26 months.