HKSAR v. TSE SHEK FAI

HCMA560/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.560 OF 2006

(ON APPEAL FROM ESCC 907 OF 2006)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentence of 21 days’ imprisonment imposed upon him on his conviction after trial of the offence of attempted theft by Miss Loh, sitting at Eastern Magistrates’ Court.

2. The offence occurred on 5 March at the Uny Store at Cityplaza in Quarry Bay.  The magistrate summarised her findings of fact in the following terms :

“At the material time and place the appellant was seen taking a bottle of aftershave from the supermarket to the book display area where he extracted the bottle from its packing box, pressed flat the box and slipped it between the pages of a magazine and put the magazine back on the shelf.  He then put the aftershave in his pocket and went to the lift lobby.  As he was waiting for the lift he saw the security guard walking out, the appellant then walked back and slipped the aftershave into a litterbin.  When the lift arrived the security guard retrieved the bottle, followed the appellant and intercepted him.”

3. The appellant was aged 53 and single.  He had been before the courts on five separate occasions when he was in his early 30s in respect of six offences.  Three of those offences were offences of dishonesty.  On the last occasion he had been before the courts, he had been sentenced to 9 months’ imprisonment, suspended for 18 months, in respect of an offence of dishonesty. 

4. During the course of the trial, the court had heard evidence from the defence that the appellant had mental problems for which he had been receiving psychiatric treatment.  It was said that they followed the repossession of his flat after he had become the victim of a fraud. 

5. Following the appellant’s conviction on 3 April 2006, the magistrate was minded to remand the appellant in custody for three weeks for the preparation of a background and psychiatric report.  However, believing that she could not adjourn for more than 14 days for a psychiatric report, she ordered a background report and adjourned the matter for one week until 10 April.  On that occasion she expressly said that all sentencing options were open.  On 10 April the background report, understandably, had not yet been prepared. 

6. Miss Jorge, who appeared for the appellant, sought to persuade the magistrate not to further seek for reports.  She reminded the magistrate of the remarks of Deputy Judge Carlson in HKSAR v. Raymond Yan Kai Yip, HCMA95/2005, that a defendant should not be remanded in custody before sentence unless a custodial sentence was very much on the cards.  The magistrate informed Miss Jorge that a custodial sentence was on the cards.  She remanded the appellant in custody until 28 April, in other words for a further two weeks, for the preparation of the background and a psychiatric report.

7. On 24 April both reports were available.  On that occasion the appellant was not represented by Miss Jorge, but by a duty lawyer, Mr Malcolm Lim.  The background report indicated that the appellant was still denying an intention to steal, but the reporting officer commented that the period of remand appeared to have had a deterrent effect on the appellant.  The psychiatric report indicated that the appellant was suffering from adjustment disorder with prolonged depressive symptoms for which he was refusing treatment.  It also commented that the appellant’s present offence did not appear to be connected to his mental state.

8. The magistrate took into account that the appellant had not committed any offence for the previous 22 years.  She said that she did not consider a conditional discharge or community service order to be appropriate.  Bearing in mind the comment in the background report that the 21 day remand appeared to have had a deterrent affect on the appellant, the magistrate sentenced him to 21 days’ imprisonment.

9. The grounds of appeal advanced by Miss Jorge to this court amount to this.  That the sentence of 21 days’ imprisonment was manifestly excessive and wrong in principle.  An immediate custodial sentence should never have been considered as being on the cards, and therefore the magistrate was wrong to have remanded the appellant in custody.  She says that the magistrate failed to give any proper weight to the fact that the appellant had not been convicted for the past 22 years and that she had failed to consider other sentencing options.

10. I find no foundation for the argument that the sentence of 21 days’ imprisonment was manifestly excessive or wrong in principle, or that the magistrate was wrong to remand the appellant in custody pending receipt of background and psychiatric reports. 

11. As Cons A/CJ said in the case of Attorney General v. Chung Kun Wai, Application for Review 8 of 1988 :

“In the realm of shoplifting the circumstances of the offence and the circumstances of the offender vary so much that it is quite impossible to suggest any general policy of approach, save that we may mention in passing, in deference to comments by counsel, that there are indeed cases in which an immediate custodial sentence is appropriate, even for first offenders.”

In the case of R. v. Chiang Wu Ming Hsiang, [1989] 2 HKLR 383, Bewley J said :

“In my judgment a custodial sentence should be imposed on a first offender only where there is evidence of planning or involvement in a syndicate.”

12. The present case was not the case of a first offender, but of somebody who had three previous convictions for dishonesty, for one of which he had received a sentence of 9 months’ imprisonment suspended for 18 months, although, as the magistrate took into account, these offences had been committed 22 or 23 years previously.  Moreover, the appellant was not someone who had shown any remorse for the present offence.  The magistrate was perfectly entitled to take the view, as she did, that a conditional discharge or a community service order were not realistic options in this case and that a custodial sentence was a likely option. 

13. She had heard in evidence adduced by the appellant of the appellant having suffered psychiatric illness.  There was nothing improper in the circumstances in remanding the defendant in custody for the preparation of psychiatric reports.  It enabled the appellant to be observed over a period of 14 days and to be available for examination during that period in Siu Lam.  The three-week period that elapsed between the time of conviction and the time of sentence was nothing out of the ordinary.  Having learnt from the background report that the reporting officer took the view that the period in custody had had a deterrent effect on the appellant, the sentence of 21 days’ imprisonment she then imposed was, in my view, appropriate. 

14. I dismiss this appeal against sentence.