HKSAR v. TSE WING KIT

[English Translation – 英譯本]

HCMA 545/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 545 OF 2014

(ON APPEAL FROM KCCC 3301/2014)

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REASONS FOR JUDGMENT

1. The appellant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.  The appellant pleaded guilty to the charge and was sentenced to 4 months’ imprisonment by Mr LAM Tsz-kan, a Deputy Magistrate sitting in Kowloon City Magistrates’ Court.  The appellant appealed against the sentence.

2. Having heard the case, I allowed the appeal, set aside the sentence and substituted it with a term which allowed the appellant’s immediate release. The reasons are as follows.

THE FACTS

3. The facts are very simple.  On the evening in question the appellant took a packet of cigarettes worth $50 from a display shelf in a 7-11 convenience store, and left the shop without making payment.  After a few hours the appellant returned to the shop, and was arrested by the police.  Under caution the appellant expressed that he committed the offence in a moment of greed.

BACKGROUND

4. The appellant is aged 41, unemployed, and worked as a waiter a few months ago.  At the time of the offence, he was living off his savings.  He has 6 previous convictions of theft.

REASONS FOR SENTENCE

5. The magistrate’s reasons for sentence are as follows:

“Reasons

4. I have noticed that the defendant has 6 previous convictions, all of which are theft-related, and were committed in recent years. The last occasion was in December 2013, when he was sentenced to a total of 10 months’ imprisonment as a result of 3 different cases.

5. In sentencing, I have referred to the observations made by Tong J in HKSAR v Pang Chak Wai (HCMA 310/2009), where he considered various authorities in respect of sentencing for shoplifting offences:

‘This case involves the theft of goods of relatively low value. It is my understanding that, save under individual circumstances, the courts are by and large taking the following approach to sentencing:

(1) Generally speaking, a first offender of shoplifting will be fined unless the case involves an organized act and, in particular, involves a large number of valuable items, in which case different sentencing considerations will come into play;

(2) Where a defendant has many similar previous convictions, the court will consider imposing a custodial sentence. If the goods in question are very small (sic) and not valuable, the court may give the defendant a chance by imposing, for example, a fine or short-term imprisonment;

(3) Where a defendant has many similar previous convictions, then unless he/she has a mental problem, the court will not attach too much weight to the number and value of the items involved but will impose a deterrent custodial sentence. However, it appears that the starting point will not exceed 9 to 12 months.’

6. I have also noted the more recent case of HKSAR v Yang Yan Yun [2014] 1 HKLRD 546. Having referred to quite a number of cases, Deputy Judge Woo also agreed with Tong J’s observations and went on to discuss the issue of enhancement of sentence. The appellant in that case committed 2 counts of theft, and the goods stolen on the two occasions were worth $674 and $1,403 respectively. The appellant had 7 previous convictions of similar nature, and depression set in on her a few years before her committing these offences. Upon appeal, a starting point of 5 months’ imprisonment was adopted for each of the offences, and an enhancement of 25% was made on account of the fact that the appellant was a persistent offender. Eventually, there was a slight downward adjustment and the sentence was one of 4 months for each count.

7. I am of the view that the principles in the above 2 cases are applicable to the present case. It has come to my notice that the value of the stolen property is only $50. The defendant is a recidivist, however, and the court has imposed various forms of sentence on him, such as a fine and a suspended sentence. He is still obstinate in his ways, and this offence was committed soon after he had been discharged from prison. I am of the view that a deterrent custodial sentence would be appropriate.

8. Having considered the background of the case and the mitigation advanced by the defendant, I adopt the starting point of 5 months’ imprisonment, and since the defendant is a recidivist of the same kind of offence there is an enhancement of 1 month, and a ⅓ discount will be given to him for his plea of guilty.  Therefore the final sentence is one of 4 months’ imprisonment.”

GROUND OF APPEAL

6. The ground advanced by the unrepresented appellant to the court is that he pleaded guilty, and that his legal representative had told him that after his plea the sentence would be a fine or at most 2 months’ imprisonment.  Now that he has been sentenced to 4 months, he lodged the appeal.

FURTHER INFORMATION FURNISHED BY THE RESPONDENT

7. Mr Edmond Lee, Senior Assistant Director of Public Prosecutions for the respondent, submitted that there was nothing wrong in principle with the sentence imposed by the magistrate, nor was it manifestly excessive.  Mr Lee submitted that in December 2013, the appellant was sentenced to a total of 10 months’ imprisonment as a result of 3 different cases of theft.  Information revealed that the stolen property were an iPhone worth $5,000, $700 worth of sporting goods and a Samsung mobile phone worth $6,000. Mr Lee submitted that although the item stolen by the appellant on this occasion was a packet of cigarettes worth $50, given his record and that he committed this offence soon after he had been discharged from prison, a starting point of 6 months’ imprisonment was not manifestly excessive.

CONSIDERATIONS OF THE COURT

8. When sentencing, the court will certainly consider the fact that the appellant is a recidivist, but the items involved are also important.  The sentence has to reflect whether the item stolen is valuable, and all the circumstances under which the appellant committed the offence.

9. Obviously, the appellant stole a packet of cigarettes from a convenience store and walked off with it as a result of his greed.  If the appellant had had no previous records, a fine would have been an appropriate punishment.  It is a hard fact, however, that the appellant has committed the same offence quite a number of times, and it is only inevitable that he be sentenced to an immediate custodial sentence.  However, in my view, despite the appellant’s background and all the circumstances relating to his committing of the offences, a starting point of 5 months’ plus a 1-month enhancement, which brought about a starting point of 6 months by the magistrate, is manifestly excessive.  I am of the view that the starting point after trial should not exceed 3 months.

10. The appellant started serving his sentence on 2 September 2014, and it has been almost 2 months now.  Therefore I allow the appeal, set aside the term of imprisonment and substitute it with one that can enable the immediate release of the appellant.