HKSAR v. TAM YUEN TONG

HCMA1182/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1182 OF 2006

(ON APPEAL FROM ESCC4707 AND KTCC4417 OF 2006)

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J U D G M E N T

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1. The 73-year-old appellant was convicted on his own plea of two offences of pick pocketing and was sentenced to 14 months’ imprisonment for each offence, eight months of which was to be served consecutively.  That resulted in a total sentence of 22 months’ imprisonment which he appeals on the bases of it being too severe.

2. The facts of the offences were that in June 2006 the appellant was seen by police officers to have approached a man in Canton Road from behind, unzip a bag the man was carrying and steal a bag containing coins from it.  He was then arrested.

3. While he was on bail for that offence he took a wallet from a shoulder bag carried by an elderly lady in a Shamshuipo market place.  She saw what he had done and made a report to the police who came to the market and arrested him.

4. The magistrate adopted an unexceptional starting point of sentence of 15 months’ imprisonment for each offence.  Because the appellant had 24 previous theft offences as well as other offences including burglary and robbery between 1949 and 2006, the magistrate rightly regarded the appellant’s record, which he described as appalling, as requiring the appellant to be regarded as a persistent offender and meriting an enhancement of the starting point for each offence to 21 months’ imprisonment.  He did not take into account the fact the appellant had committed the 2^nd offence whilst on bail.

5. He accepted the appellant’s plea of guilty as the only substantive mitigation available to the appellant, and reduced the sentence on each offence to one of 14 months’ imprisonment.  He then considered totality and ordered the sentences to be served partly concurrently to achieve a totality of 22 months’ imprisonment.

6. In arriving at the sentence the magistrate specifically disregarded the appellant’s age and physical condition as mitigating factors.  The appellant apparently suffers from tuberculosis and perhaps also from liver disease.

7. The appellant effectively argues that not sufficient consideration was given by the magistrate to his age and ill health.

8. Advanced age, it may fairly be said, is not in principle a mitigating factor but a court is entitled to take it into account where it thinks appropriate, and as an act of mercy use it as a basis for a discount in sentence : see R. v. Chan Tak Sang [1987] HKLR 1203 at 1207.  That is particularly so when advanced age is combined with an unblemished character : see R. v. Bowdler [1975] Crim. LR 580.  Ill health generally will not normally operate as a mitigating factor.  That is because prison medical facilities are regarded as adequate to deal with prisoners’ physical complaints.  As a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive.  Accordingly the ill health, with the exception of perhaps very serious ill health, of an offender will not be a matter taken into account in mitigation : see R. v. Chan Kui Sheung [1996] 3 HKC 279 at 284 and R. v. Lo Chi Keung [1996] 3 HKC 155.   Again, however, in exceptional circumstances and as an act of mercy rather than as a principle of mitigation, ill health may result in a reduction of sentence.

9. In the present case the appellant has received a sentence which is relatively short and which will not see him at any real risk of spending any significant portion of his remaining life in prison.  His illness is treatable in prison, perhaps more so than when he lives at home, and given his continuing and apparently increasing propensity to commit offences of this sort, questions of deterrence outweigh considerations of mercy.  The magistrate was right to disregard the appellant’s age and ill health as mitigating factors and the appeal is dismissed.