HKSAR v. SO OI YING

HCMA 50/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 50 OF 2002

(ON APPEAL FROM WSCC 11999/2001)

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J U D G M E N T

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1. On 5 December 2001 the appellant, following upon her conviction after trial of an offence of conspiracy to steal, was sentenced at Western Magistracy to a term of 18 months imprisonment. It was against that sentence which she appealed.

2. When this matter first came before the learned Magistrate there were 4 defendants (this appellant being D4). On the papers the 4 defendants were a gang operating together in a shop lifting spree.

3. In the event, however, the prosecution did not frame its charges to give effect to that allegation but it did so in this way:-

D1 was charged with receiving (on 24 October) 2 pairs of stolen trousers and with the theft (on or before 24 October) of more than 100 separate items; D3 and the appellant were charged with the theft (on 24 October) of those trousers allegedly by received by D1: and D2 was charged with receiving (on 24 October) the more than 100 items allegedly stolen by D1.

4. If I have understood the position correctly D1 pleaded guilty and was sentenced to a term of 12 months imprisonment : D3 pleaded guilty and was sentenced to a term of 8 months imprisonment and D2 was convicted after trial and sentenced to a term of 12 months imprisonment.

5. At the close of the prosecution case against the Appellant something somewhat unusual occurred. The learned Magistrate relates it in this way:-

"Now, I should say that after the close of the prosecution case I amended charge 1 against D4. She was charged with theft of the trousers .... , jointly with D3, the case being that she waved the trousers to distract the staff while D3 stole. As the evidence then was before the court, there was no proper foundation for such a charge. There was no evidence of the presence of any staff or anybody being distracted or anything else to show that she was participating in that particular theft, taking it in isolation.

However, there was, on the whole of the evidence, a case to answer on a conspiracy to steal between her and D1 and D3, and I amended the charge accordingly and followed the section 27 procedure. I am not going to say any more about that here."

6. There is no suggestion made before me that the Magistrate was in any way in error in doing what he did in accordance with Section 27 of the Magistrates Ordinance and, that being the case, presumably the Appellant pleaded not guilty to the amended charge of conspiracy and no adjournment was applied for. Certainly the Appellant's subsequent conviction for that offence is not appealed against, but I note here that whilst the amended charge particularised D1 and D3 as being co-conspirators, they were not charged with that offence, and whilst the conspiracy was alleged in the amended charge to have taken place on the 24 October the thefts (of the more than 100 items) which D1 admitted to, took place on or before that date.

7. The Magistrate appears, when he came to sentence the Appellant, to have done so upon the footing that the conspiracy of which he convicted the appellant inevitably covered all of the items stolen by the 'gang' and not merely the 2 pairs of trousers which were the subject of the sole charge which the Appellant originally faced.

8. Indeed what the Magistrate said in court about the Appellant's activities and those of the other Defendants was, inter alia, this:-

"This case, despite the way that the prosecution originally charged it and presented it, is not some ordinary shoplifting case. This was stealing on a massive scale and, as has been said, we are talking about over 100 items in this big bag seized outside the McDonald's. It means that on that day over $22,000 worth of goods had been stolen, and this in various ways, by various levels of involvement, on the charges, by three persons who have come to Hong Kong before and have stolen property; in D1 and D4's cases, fairly recently. This was a gang engaged in shoplifting and that takes it quite outside the ordinary sort of cases of stealing from shops that come before the courts.

Now, it is right that I take into account that in D3's case she is charged with stealing two pairs of trousers. I have already expressed my surprise at the way the prosecution have approached this case. They seem to have been blind to the plain fact that this was a number of people acting in concert together. But whether that is the case or not, D3 is not to be sentenced for what she is not charged with, if I can put it rather inelegantly in that way. One must, therefore, draw a distinction between her case and the cases of D1 and D4. However, one must not lose sight of the fact that her stealing was a contribution to a much larger exercise of stealing and she is not to be sentenced in isolation from the rest of the case

D1's pleas to seven separate charges reflect properly his involvement in this matter, as does D4's conviction for a conspiracy to steal, for a conspiracy was what it was.

D2's position as the handler of the goods again is to be distinguished, not just because he is younger, and I do take that point, but there is no direct evidence of his involvement in the stealing, though the part he played was an essential part because somebody had to keep this large stock of stolen goods whilst the others continued with the stealing. However, he is younger and has a clear record and that is to be taken into account.

In D1 and D3's cases, they have the mitigation of their pleas of guilty, which has entitled them to one-third discount on their sentences, which they will get. ......

Before the discount for a plea of guilty in the case of D1 and D4, the sentence is 18 months' imprisonment, and that is a sentence that is imposed on D4. In D1's case that will be reduced to 12 months' imprisonment to reflect his plea. In D3's case I take a starting point of 12 months, to reflect the different position that she is in. I reduce that to 8 months to reflect her plea of guilty.

In D2's case ...... he is not entitled to any discount from the starting point, which I set at 12 months.

The sentences on D1 will be concurrent on each of the charges to which he has pleaded guilty and the total sentence he therefore faces is one of 12 months' imprisonment. In D2's case it is 12 months' imprisonment. In D3's case 8 months' imprisonment. In D4's case, 18 months' imprisonment."

9. In his written reasons for sentence the Magistrate says this:-

"I adopt the reasons for sentence given in court. This was a gang of Mainland shoplifters, engaged in a very substantial and well organized operation. It was not some spontaneous action. D4 played a full part in the activities of the gang. She had been convicted of theft in Hong Kong twice in 1998. She was not to be re-sentenced for those offences but her persistence aggravated the present offence. I judged the proper sentence after trial to be 18 months' imprisonment. There was no basis for any discount."

10. It is quite apparent to me from all that he said that the Magistrate - and for very good reason - was unhappy with the manner in which the prosecution had proceeded in this case with some inappropriate and confusing charges which (in his view) did not properly reflect the full criminality of each of the defendants before him. He sought, as it were, to redress the balance by having resort to Section 27 and in so doing charging the Appellant on her own (albeit that 2 other dependants were named as co- conspirators) with a conspiracy on the 24 October not limited to the theft of 2 items (which were proved to be stolen on the 24 October) but to the theft of more than 100 items which were allegedly stolen on or before that date.

11. That was undoubtedly the Magistrate's intention but, in the absence of a statement of facts or pronouncement making it clear at the time of the amendment that was what the conspiracy related to, it seems to me that the Appellant and her advisers might readily have misunderstood the position given the sole charge upon which the prosecution had relied up to the close of its case.

12. It also seems to me, with respect to the learned Magistrate who understandably was frustrated by the way in which the case had been presented by the prosecution, that the Appellant must have a real sense of grievance concerning the sentence which was imposed upon her in comparison with those that were imposed upon her co-defendants in all of the circumstances that I have described.

13. Given all that I have said above I am satisfied that the justice of this case requires me to allow this appeal to the extent that I reduce the sentence of 18 months to one of 12 months imprisonment. That substituted term equates to the starting point in sentence which the learned Magistrate adopted in respect of D3.