R. v. LAU KIN HONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 355 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of theft and was sentenced to 14 months imprisonment. He now appeals against sentence.

2. The facts are that the victim was having lunch in the Oliver's Super Sandwiches in the Landmark. He had put his handbag on a seat next to him. The appellant passed by, picked up the handbag and started to make his way out of the shop. He was then chased after and caught red-handed. He then dropped the handbag which contained less than $60 of articles or items.

3. The appellant is 36 years of age. He had very little education and according to the reports which were called for by the learned Magistrate, he had suffered from polio as a child and had a disability to his right hand and left leg. He had been a drug addict before. I think it is only fair to mention that he had 10 previous convictions, almost all of them were theft offences. He had been to prison on eight occasions, and on some occasions, for up to 12 months. He had occasional jobs and therefore it appears that his disability had not affected him to the extent that one would have expected.

4. The learned Magistrate treated this case as a case of pickpocketing. He adopted a starting point of 15 months. He took into consideration the appellant's plea but mentioned that it was a plea at the very last moment and that there was no indication of any genuine remorse.

5. Before me, counsel submitted that this was not a case of pickpocketing. It should be somewhere between a case of pickpocketing and a case of shoplifting. For shoplifting, the usual sentence would be a short custodial sentence whereas for a pickpocketing offence, it would be in the region of 12-15 months imprisonment. Counsel also submitted that the learned Magistrate was wrong to adopt the starting point of 15 months and failed to give sufficient discount for his plea.

6. I do not agree that pickpocketing cases must involve a sophisticated modus operandi or some special skill by a professional thief. Pickpocketing involves a variety of activities - ranging from picking the victim's items conveniently from a bag carried by the victim to other more sophisticated manoeuvres. I agree with the learned Magistrate that this is more a case of pickpocketing than shoplifting.

7. For the pickpocketing offence, the usual tariff would be 12-15 months. The learned Magistrate adopted the higher level of 15 months in view of the circumstances of the case. Of course the appellant is not punished for his record which I have mentioned already, but I think the learned Magistrate is perfectly entitled, in the circumstances of this case, to adopt the higher level of 15 months, the appellant not being a first offender.

8. The usual one-third discount is, in my view, reserved for those cases where the defendant pleads guilty at the earliest possible opportunity, has shown genuine remorse and has saved the court and everybody some time. In the present case, the appellant appeared to have pleaded guilty only at the very last moment - on two previous available occasions, he did not. It is also quite clear that there was no sign of any genuine remorse on the appellant. He cannot, of course, be punished for his record. But I think his long criminal record, particularly offences of similar nature, would not assist him in mitigation but would deprive him of the benefit of the full discount. So in the circumstances, although it appears to be slightly on the high side, I think the sentence of 14 months imprisonment in the circumstances is neither wrong in principle nor manifestly excessive. I would dismiss the appeal.