HKSAR v. YANG YAN YUN

[English Translation – 英譯本]

HCMA 54/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 54 OF 2013

(ON APPEAL FROM FLCC 38 and 39/2013)

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J U D G M E N T

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Introduction

1.  At the conclusion of the hearing on 17 April 2013, I adjourned the matter to today for decision. I allow the appeal, set aside the sentence of 10 months’ imprisonment and substitute therefor a sentence of 8 months’ imprisonment. I set out below my reasons for judgment.

Background

2.  The appellant, who was the defendant at trial, faced two cases against her. In each case she was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The charges were as follows:

FLCC 39/2013

On 27 December 2012, the defendant stole from a supermarket at Yat Ming Road, Fanling, 6 bottles of shampoo and 4 bottles of hair conditioner of a total value of $674.

FLCC 38/2013

On 3 January 2013, the defendant stole from another supermarket at Luen Wo Road, Fanling, 4 cans of milk powder, 6 bottles of shampoo and 1 bottle of hair conditioner of a total value of $1,403.

3.  The cases were dealt with by Magistrate Ms H.F. Woo. The appellant pleaded guilty to the charges. She was sentenced to 6 months’ imprisonment on each count, with 4 months of the sentence in one of the cases to run consecutively to the sentence imposed in the other, making a total term of 10 months. She now appeals the sentences.

Reason for sentence

4.  In her Reasons for Sentence, the Magistrate pointed out that on 27 December 2012 and 3 January 2013 respectively the defendant stole from two supermarkets near her place of residence. In each case she put the stolen goods in a bag she brought along and left the shop without making payment. The defendant is a widow aged 39 and has a 14-year old son who is a Form 2 student. She is on Comprehensive Social Security Assistance, receiving approximately $3,000 per month. She has suffered from depression since 2007, for which she has to seek long-term medical treatment. The Magistrate went on to say:

“Sentencing considerations

The defendant started to commit offences 4 years ago. Since then, she has had 9 previous convictions, 7 of which are for shoplifting and for most of which she has been sentenced to imprisonment. She has 3 theft convictions for theft in the year 2012 alone.

In August 2012 the defendant was sentenced to 4 months’ imprisonment for possession of a dangerous drug. Soon after her release from prison, she committed the theft offence in FLCC 39/2013 on 27 December of the same year. She was arrested and put on bail. Just a few days later, on 3 January 2013, she committed yet another offence of theft (FLCC 38/2013). This time, besides stealing shampoo and hair conditioner again, she also stole milk powder, and the total value of the goods stolen was twice that of last time.

The defendant, who has kept breaking the law over a few years, can be regarded as a ‘persistent offender’. A custodial sentence is no longer having a deterrent effect on her: she not only broke the law again shortly after her release from prison, but went so far as to commit the same type of offence while on bail.

The defendant must be severely punished as she has been obstinately going her way, turning a blind eye to the law and acting recklessly and irresponsibly. I therefore adopt a higher starting point as an admonition[1].

Sentence

Having considered the two cases, the background of the defendant and the submissions in respect of mitigation, I adopt 9 months’ imprisonment as the starting point for each of the two cases. Giving one-third discount for the defendant’s pleas of guilty, the term is reduced to 6 months each.

Consecutive or concurrent sentences?

The two offences were committed on different dates and did not arise from the same transaction. Besides, the fact is that when she was on bail for the first offence, the defendant committed the second similar offence. The court is therefore entitled to impose consecutive sentences[2]. However, in light of the totality principle, I order 4 months of the sentence imposed in FLCC 38/2013 to be served consecutively to the term of 6 months imposed in FLCC 39/2013, making a total sentence of 10 months’ imprisonment.”

Grounds of appeal

5.  In the perfected grounds of appeal, Ms Eliza Yiu, counsel for the appellant, has advanced several grounds of appeal:

(1) The sentences passed by the Magistrate are manifestly excessive;

(2) In passing sentences, the Magistrate should not have considered that the stolen goods were ‘no doubt to be sold’ by the appellant as this was not a fact which had been accepted by the court as evidence;

(3) The Magistrate erred in according too much weight to the appellant being a ‘persistent offender’;

(4) The total sentence imposed by the Magistrate having regard to the ‘totality principle’ is manifestly excessive.

6.  Ms Yiu has cited a number of decided cases in support of her contentions.

7.  On the other hand, Miss Noelle Chit, Public Prosecutor for the respondent, has argued that the deterrent sentences adopted by the Magistrate in the circumstances of the present case are neither wrong in principle nor manifestly excessive. She has also cited a number of decided cases to support her contention.

Discussion and views of this Court

8.  In respect of ground of appeal (2), Ms Yiu has submitted that, as Deputy High Court Judge Toh pointed out in paragraphs 6 and 7 of her judgment in HKSAR v Leung Ka Long,HCMA 250/2001 (30/5/2001, unreported), the Magistrate in assessing the sentence should not have considered facts to which the appellant had not admitted. It is submitted that the Magistrate erred in principle in enhancing the sentences because she had taken into account that the stolen goods were ‘no doubt to be sold’ by the appellant. On the other hand, Miss Chit has submitted that the summary of facts shows that among the goods stolen by the appellant in FLCC 38/2013 were 4 cans of infant formula milk known as Enfakid A, and as the appellant has no children other than a son aged 14, it accorded with common sense, and hence was eminently reasonable, for the Magistrate to draw the inference that the appellant stole the milk powder not for self-use but for resale for profit. In my view, reasonable as this inference may be, the approach of enhancing penalty sentence by drawing an inference adverse tothe appellant without her admission or agreement is open to criticism — it may be regarded as or at least said to be unfair to the appellant and improper.

9.  As a matter of fact, it was only after she imposed the sentences on the appellant that the Magistrate said the milk powder was no doubt to be sold. Those words are not contained in the Reasons for Sentence and are only seen in the transcripts of the trial. Subsequent to sentencing, the Magistrate dealt with the exhibits of the cases, and when the duty lawyer representing the appellant made mention of the milk powder, the Magistrate said that, as the appellant had stolen more goods while on bail and there was no doubt that the stolen milk powder was to be sold, the appellant was a persistent offender and as such was to receive a severe sentence. However, the Magistrate did not indicate the extent of enhancement of the sentence as a result, and it is therefore very difficult to tell whether she had enhanced the sentences because the stolen milk powder was no doubt to be sold, or to what extent the sentences she imposed on the appellant had been affected by this improper sentencing approach.

10.  As regards the three other grounds of appeal, I am of the view that the following are the three usual sentencing approaches or principles in respect of shoplifting cases:

(1) The general sentencing approach appropriate for shoplifting cases;

(2) Whether the sentence for a persistent shoplifter should be enhanced and the extent of enhancement;

(3) Whether the sentence for further shoplifting committed while the offender is on bail should be made consecutive.

The general sentencing approach appropriate for shoplifting cases

11.  The Court of Appeal has not laid down any sentencing guideline for shoplifting cases. In AG v Chung Kun Wai [1989] 1 HKLRD 91, the Court of Appeal 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. … 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.”

12.  In HKSAR v Leung Ka Long,Deputy High Court Judge Toh expressed her views as follows:

“8. I consider that imprisonment is appropriate for most shoplifting cases because of the prevalence of the offence and the difficulty of detection. Many millions of dollars are lost by shops due to shoplifting. So a deterrent sentence is necessary.”

13.  By this Deputy Judge Toh was expressing her acute disapproval of the offence of shoplifting. A milder approach was taken by the Court of Appeal in HKSAR v Chan Pui Chi [1992] 2 HKLRD 380 and [1999] 3 HKC 848 where, in discussing the enhancement of the starting point for persistent offenders, the Court of Appeal referred to a lighter sentence being imposed on a first offender of shoplifting:

“… in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for a repetition.”

14.  As observed by the Court of Appeal in Chung Kun Wai,the circumstances of the offence and the circumstances of the offender vary so much from case to case that it is impossible to put forward an appropriate general sentencing policy, and the sentence to be imposed in each case depends on the circumstances of the case itself. Nevertheless, an examination of the relevant decided cases will reveal the sentences ordinarily imposed for the same type of cases and the reasons given therefor. This will be helpful to the sentencer and will also help make the offender feel that they have not been treated unfairly. In this regard, Deputy High Court Judge Yau shared the same view in HKSAR v Lam Siu Kei (transliteration), HCMA 726/2012 (16/1/2013, unreported):

“13. Although there is no sentencing guideline for this type of offences, the sentencing in a particular case should not be overly different from that in other similar cases, otherwise injustice is bound to ensue.”

15.  In HKSAR v Pang Chak Wai(transliteration), HCMA 310/2009 (13/5/2009, unreported), Tong J cited and considered seven judicial authorities in respect of sentencing for shoplifting offences. I set out below the salient sentencing considerations in these seven cases as well as other similar cases for easy reference. Where applicable, I also insert the letter (A) or (R) following the case name in order to indicate whether the case was cited by the appellant or the respondent.

16.   In Pang Chak Wai,after examining the decided cases involving sentencing for shoplifting offences, including cases (2), (3), (4), (7), (8), (9) and (11) set out in the above table, Tong J had this to say:

“10. I thank Mr Chung, Senior Public Prosecutor, for referring me to these authorities which serve as very useful references. For cases such as the present one, which involve 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.”

17.   Tong J’s observation is correct and I entirely agree with it. It can be seen from the above sentencing authorities that the courts have invariably sentenced recidivists or persistent offenders to imprisonment or enhanced their sentences. If the item involved is very small (sic), such as daily food and beverages, and does not command a high value, the court will most likely impose a fine on a first offender. But where the case involves a repeated offender and an item exceeding $100 in value, the lowest starting point is 3 months’ imprisonment; the more similar previous convictions the defendant has, the higher the starting point will be.

Whether the sentence for persistent shoplifters should be enhanced and the extent of enhancement

18.   It was long been established by the Court of Appeal as early as in HKSAR v Chan Pui Chi[1992] 2 HKLRD 380 and [1999] 3 HKC 848 that the sentences for recidivists will be enhanced. That case involves the offence of trafficking in a dangerous drug. The applicant, who sought to appeal the sentence imposed on him, had a total of 22 previous criminal convictions, several of which were for trafficking in a dangerous drug and other drug-related offences. The Court of Appeal pointed out that the applicant’s previous convictions formed the background against which he was being sentenced. The Court was sentencing him not on the basis of the previous offences for which he had already served the sentences, but on the basis of his constant repetition of trafficking in dangerous drugs, which per se increased the gravity of these offences. It had been demonstrated that the sentences he had received in the past had no deterrent effect on him at all, and it was certainly in the public interest to prevent re-commission of offences. Re-offending increased the gravity of the offence, at least as far as sentencing was concerned. The courts had a duty to impose heavier sentences on determined persistent offenders in order to deter them from re-offending so that the public would be duly protected. Although Chan Pui Chi does not involve the offence of shoplifting, it does establish the principle that Hong Kong courts should enhance the sentence against persistent offenders.

19.   In HKSAR v Ng Chi Man [1999] 1 HKC 632 at 635, in dealing with a persistent robber, the Court of Appeal said:

“We wish to make it plain when so saying that he is not receiving an enhanced sentence because of his record. He is being sentenced because the present offences have circumstances of aggravation which arise because they are committed by a determined offender experienced in this kind of offence. That, in itself, is properly a circumstance aggravation.”

20.   In HKSAR v Leung Tong & Anor [2001] 1 HKLRD 526, 528, [2001] HKCU 180, which concerns an appeal against the sentence imposed on a persistent burglar, the Court of Appeal said:

“A defendant should not, of course, be punished for previous offences for which he has already served the penalty. But if a defendant were to repeatedly commit offences, particularly similar offences and demonstrated a complete disregard for the law, the Court is entitled to treat such affront to the law as an aggravating factor with a view to the protection of the public from yet further repetition.”

21.   In HKSAR v Lam Kwai Wa, HCMA 1078/2002 (13/12/2002, unreported), a case involving shoplifting which has been referred to in the table above, Deputy High Court Judge McMahon explained that to enhance the sentence of a persistent offender was, as had been enunciated by the Court of Appeal in Chan Pui Chi, intended to deter the defendant from re-offending and protect the public, and that he was not given a heavier sentence by reason of his previous convictions.

22.   In HKSAR v Mak Tung,HCMA 1196/2002 (21/1/2003, unreported), Deputy High Court Judge McMahon further said:

“In deciding whether to enhance a sentence on the basis of the principle expressed in Chan Pui Chi, it is not only the quantity of previous similar offences an offender has committed, but also factors such as how similar the previous offences were and how recently those offences were committed, which fall to be considered by the sentencing court.”

23.   As regards the extent of enhancement, in Lam Kwai Wa, theappellant stole 2 packets of cakes of $20 in value. He had 31 previous convictions, of which 11 were theft-related. Having considered several decided cases on sentencing persistent shoplifters, Deputy High Court Judge McMahon held that the enhancement should not exceed one-third of the starting point, and in that case, the sentence should be enhanced by only 16% to 25%.

24.   In HKSAR v Yeung Kam Tung,CACC 427/2012 (19/3/2013, unreported), the defendant(i.e. the applicant for leave to appeal) pleaded guilty in the District Court to one count of theft, he having snatched a smart phone of approximately about $4,000 in value. He had 10 previous convictions, of which 9 were theft-related. The District Court Judge sentenced him to 16 months’ imprisonment. The Court of Appeal noted that the District Court Judge had made it clear that she enhanced the starting point in light of two aggravating factors: the defendant was a persistent offender with many previous convictions, and he committed the offence on the very day of his latest release from prison for the same type of offence. The Court of Appeal considered it questionable whether the fact that the defendant committed the offence on the day of his release was sufficient evidence that he was a persistent offender or merely that he was so desperate as to be prepared to commit the offence notwithstanding the risk thereof. The Court of Appeal was reluctant to characterize the defendant as an incorrigible persistent offender. The Court of Appeal considered that it was incumbent upon the District Court Judge to clearly state the starting point she adopted, and that her failure to do so rendered it impossible to know the increment she had made to the sentence or the extent of enhancement. The Court of Appeal concluded as follows:

“18.     There is no percentage of enhancement that appellate courts have said is appropriate in any particular situation. The percentage of enhancement will vary according to the seriousness of the offence, the circumstances of the offender and the sentencing purpose for which enhancement is being employed. In the circumstances of this case and of this offender and given that the only purpose of the enhancement is to provide additional deterrence to this applicant, we are of the view that an enhancement of 3 months, representing an increase of 25% on the starting point of 12 months imprisonment, is appropriate. Consequently, after enhancement, the sentence should be 15 months imprisonment. When discounted to allow for the plea of guilty, the final sentence becomes 10 months imprisonment.”

Whether the sentence for the further shoplifting committed while on bail should be made consecutive

25.   In HKSAR v Wong Kwong Yin, CACC 209/1997 (20/11/1997, unreported), the Court of Appeal said:

“As to whether the sentences should run consecutively, we must make it clear that, where an offender commits a second offence whilst on bail for the first offence, then upon conviction, the sentences for the two offences should run consecutively, particularly so where the two offences are of a similar nature; otherwisethe court may be criticized for encouraging offenders to commit further offences whilst on bail.  The trial judge was correct in ordering that the sentence in this case was to run consecutively to the sentence which the applicant was serving.”

(Emphasis added)

26.   In HKSAR v Chau Lap Pui[2007] 2 HKC 342, the applicant pleaded guilty at trial to three offences committed at different times, namely possessing ammunition without a licence, theft and burglary. The prosecution submitted that, as the last two offences were committed while the applicant was on bail and the three offences were not related to one another, the sentences for these offences could in principle run wholly consecutively, subject to the requirement that the total sentence be appropriate. The Court of Appeal agreed and varied the order for consecutive sentences made by the judge so that all the three sentences were to run consecutively.

27.   In Li Hei Chuen, the magistrate sentenced the defendant to 4 months’ imprisonment for each of the three counts, and ordered that all the sentences were to run consecutively since the offences in counts (2) and (3) were committed while the defendant was on bail. Deputy High Court Judge A. Pang, adopting and following the aforesaid reasoning of the Court of Appeal, dismissed the appeal.

Circumstances of the present case and the views of this Court

28.   In the present case, the appellant had 9 previous convictions, 7 of which are for offences involving dishonesty in the form of shoplifting. She was imprisoned for 4 months from August 2012 for the offence of possessing a dangerous drug. On 27 December 2012, shortly after her release from prison, she committed the offence in FLCC 39, stealing beauty products of $674 in value. Having been granted bail, she committed the offence in FLCC 38 on 3 January 2013, stealing beauty products and 4 cans of milk powder of a total value of $1,403. The magistrate adopted 9 months’ imprisonment as the starting point, making it clear that it had been enhanced because the appellant was a persistent offender. After giving one-third discount for the pleas of guilty, the magistrate sentenced the appellant to 6 months’ imprisonment for each case. However, she did not indicate what the appropriate starting point should have been had the appellant not been a persistent offender, and what the enhancement for her being a persistent offender was. This is precisely what Ms Yiu, counsel for the appellant, has complained about. The magistrate also failed to comply with the duty imposed on sentencing courts, as pointed out in Yeung Kam Tung and Lam Kwai Wa. In my view, the magistrate erred in this regard.

29.   In Ng Kwok Hung(transliteration), after considering several decided cases, Deputy High Court Judge M. Poon pointed out that in Lam Kwai Wa, in which the property in question were cakes of only $20 in value, Deputy High Court Judge McMahon said that, notwithstanding the insignificant value of the stolen property, where an immediate custodial sentence was appropriate, a sentence of approximately 3 months’ imprisonment would not be excessive; in Chung Kun Wai, in which the stolen items were two tubes of ointment of a total value of $21.80, the Court of Appeal held that a starting point of 3 months was appropriate; and in Cheung Yung Wah, in which the stolen property was a piece of garment of $69 in value and the appellant had more than 27 previous convictions, the Court of First Instance held that the appropriate starting point was 6 months. Deputy High Court Judge M. Poon went on to say:

“13. This shows that the submission made by counsel for the appellant that the starting point for shoplifting cases is generally 3 months is, with respect, incorrect. The value of most of the stolen items in the cases he cited was not high, and Lam Kwai Wa and Cheung Yung Wah convey the clear message that the starting point should reflect the value of the stolen property. The present case involves 4 bottles of red wine of a total value of $956 — higher than the $69 for the garment in Cheung Yung Wah or even the $280 for the DVDs in Leung Ka Long on which counsel for the respondent relied. In my view, the starting point can be set at 9 months and then enhanced to 12 months by reason of his being a persistent offender. The one-third enhancement is by no means excessive.

14. As a matter of fact, there is authority for adopting a starting point of 12 months for a persistent shoplifter. See HKSAR v Wu Kwok Keung (transliteration), HCMA 206/2005.

15. The sentence is neither excessive nor wrong in principle. The appeal is dismissed and the original sentence upheld.”

30.   The sentence passed in Ng Kwok Hung is severe. So is the sentence imposed in Wu Kwok Keung. But it should be noted that the defendants in both cases had many similar previous convictions: 22 criminal convictions in Wu Kwok Keung, most of which were related to shoplifting; and 76 previous convictions in Ng Kwok Hung, of which 40 were similar. They are therefore not akin to the present case.

31.   Ms Yiu has stressed that, of the defendants in the many cases referred to above, only two have a background similar to that of the appellant in the present case. The defendants in Chan Lai Ping and Pang Chak Wai were both middle-aged mothers in single-parent families, suffered from either depression or mental problem, and lived on social security assistance. The Court of First Instance held that the respective starting points of 3 months and 4 months were correct. Ms Yiu has urged the court to deal with the appellant in a similarly lenient manner, although she has agreed that it is not a matter of principle but is rather a matter of giving full consideration to the background of the defendant.

32.   Ms Yiu has also relied on what Miss Chit said in her written submission: although the 10 months’ imprisonment imposed in the present case is not manifestly excessive, it is in fact a rather heavy sentence. Miss Chit has explained that when she said it was rather heavy, she was comparing the sentence to the one imposed on Li Hei Chuen (HCMA 399/2012), but the sentence imposed by the magistrate in the present case was not manifestly excessive.

33.   As regards the errors made by the magistrate, namely her failure to point out the starting point or the extent of enhancement made by reason of persistent offending, as well as her view, inappropriately held, that the appellant stole the milk powder for the purpose of reselling it for profit, Miss Chit has submitted that the sole question at the end of the day was whether the 10 months’ imprisonment imposed in the present case is manifestly excessive. However, I have to point out that, as it is impossible to ascertain the effect of these errors on the sentencing, the appellant should be given the benefit of any doubt in that respect.

34.   Having carefully considered the many decided cases, I am of the view that the main reason why the defendants in Chan Lai Ping and Pang Chak Wai were given lighter sentences was that neither of them had many previous convictions: the former had 8 similar convictions and the latter 4 similar theft records. By comparison, the defendants in Ng Kwok Hung and Wu Kwok Keung, who were given severe sentences, had far more previous convictions.

35.   In light of the above discussion, I am of the view that it is most important for a starting point to fully reflect the value of the stolen property and the number of the defendant’s previous theft convictions. The starting point of 9 months adopted by the Magistrate is manifestly excessive because, according to the many decided cases referred to above, the appropriate starting point in circumstances similar to the present case and for defendants with a background similar to that of the appellant in the present case should fairly be 5 months’ imprisonment for each case. An enhancement of 25% should be made on account of the fact that the appellant is a persistent offender. Allowing a one-third discount for her plea of guilty, the sentence for each case should be 5 x 1.25 x 2/3. This gives 4.16 months’ imprisonment. Adopting the reasoning of the Court of Appeal in Wong Kwong Yin and Chau Lap Pui, the sentences for the two cases should be made wholly consecutive, and in light of this, the sentence for each case can be reduced slightly to 4 months’ imprisonment. The total sentence for the two cases is 8 months’ imprisonment. The 10 months’ imprisonment imposed by the magistrate is manifestly excessive.

Conclusion

36.   For the above reasons, I allow the appeal. The original sentence of 10 months’ imprisonment is set aside and a sentence of 8 months’ imprisonment is imposed in substitution therefor.