THE QUEEN v. CHIANG WU MING HSIANG

MA No. 247 of 1989

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H E A D N O T E

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SHOPLIFTING - FINE PROPER SENTENCE FOR FIRST OFFENDER IN ABSENCE OF AGGRAVATING CIRCUMSTANCES.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 247 OF 1989

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J U D G M E N T

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1. The appellant pleaded guilty to theft and was sentenced by Mr. Crawshaw in South Kowloon Magistrates Court to four months imprisonment. It was a shoplifting case involving 20 odd articles, valued at $3,882, the property of Duty Free Shoppers, Hankow Road.

2. The appellant was unrepresented before the magistrate and, in mitigation said only that she was greedy and would not dare to do it again.  It was her first offence.

3. Today Mr. Sedgwick has told me that she was a member of a tour group from Taiwan, which had been left in the shop for two hours by the tour leader. She had eventually been, tempted by the display of goods, which was more open than was usual at home. She had not set out deliberately to steal.

4. The appellant's two young children had been with her and had been unable to return immediately to Taiwan as they were included in her passport. She spent a week in custody before being granted bail. She is now on bail pending appeal.

5. The magistrate relied on a dictum of de Basto J. in R v. Chan Chi-man MA 488/86:

"It is not uncommon for sentences of 9 months imprisonment to be imposed for a shoplifting offence even in respect of first offenders ......."

6. In that case the appellant had three previous conviction for theft and the offence had been committed within a month of his release from prison. His sentence was reduced on appeal from months to 12 months.

7. In A.G. v. CHUNG Kum Wai A.R. 8/88 the respondent was fined $2000. He had three previous convictions for theft, including, two for shoplifting, for which he had also been fined. Allowing the application and sentencing the respondent to two months imprisonment, Cons Ag. C.J. said:

"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.

The position is much the same with regard to a second or even subsequent offence But we agree with Crown counsel that there does come a time when an offender's record becomes such that a prison sentence is inevitable."

8. 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. Counsel for the respondent does not disagree with this view.

9. The appeal is allowed, the sentence set aside and a fine of $2,000 substituted therefor.