HKSAR v. WONG LAI YEE

[English Translation – 英譯本]

HCMA 564/2021
AND HCMA 565/2021
(Heard Together)

[2022] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 564 AND 565 OF 2021

(ON APPEAL FROM KCCC 1786 AND 2949 OF 2021)

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REASONS FOR JUDGMENT

A.   Introduction

1.  The appellant pleaded guilty to the charges in the following two cases before Deputy Magistrate Wong Tsz-ho (the “magistrate”) in Kowloon City Magistrates’ Court:-

(1)  KCCC 1786/2021 [Case 1] (HCMA 564/2021)

The appellant was charged with theft of two copies of newspaper valued at $18.

(2)  KCCC 2949/2021 [Case 2] (HCMA 565/2021)

The appellant stole from another store six copies of newspaper valued at $54 while she was on bail for the above case.

2.  The magistrate sentenced the appellant to six months’ imprisonment for each of the two charges. Having regard to the totality principle, he further ordered that two months of the sentence for Case 2 be served consecutively to the sentence of six months’ imprisonment for Case 1, making a total of eight months’ imprisonment.

3.  The appellant appealed against the sentences.

4.  At the conclusion of the hearing, I allowed the appeals, set aside the sentences and substituted them with a term that would allow the appellant’s immediate release. These are my reasons.

B.  The facts, mitigation and reasons for sentence

5.  Mr Pierre Lui, Senior Public Prosecutor, and Ms Kathy Sum, Public Prosecutor, for the respondent briefly stated the facts of the present two cases under appeal, the appellant’s background and submission in mitigation as well as the magistrate’s reasons for sentence in their written submissions, which I basically adopt.

B.1   The facts

Case 1

6.  At 7:45 pm on 24 June 2021, inside Vango Convenience Store, Shop G10A & G10B, Ground Floor, Temple Mall South, 103 Ching Tak Street, Wong Tai Sin, Kowloon, Hong Kong, PW1, the manager of the convenience store, noticed the appellant taking two copies of Sing Tao Daily[1] from the shelf and leaving without paying.

7.  In response to a report, the police attended the scene and arrested the appellant. At the time of the arrest, the appellant had HK$527.3 in cash on her person[2]. The two copies of newspaper were valued at HK$18.

Case 2

8.  At 4:40 pm on 8 October 2021, at Circle K Convenience Store, Kiosk WTS12, Wong Tai Sin MTR Station, Wong Tai Sin, Kowloon, Hong Kong, PW1, a passer-by, noticed the appellant taking six copies of Sing Tao Daily from the shelf and leaving without paying.

9.  Subsequently, the appellant was arrested. At that time, she had HK$1,280 in cash on her person. The six copies of newspaper were valued at HK$54.

B.2   The appellant’s background and mitigation

10.  The appellant has 22 previous criminal convictions, 21 of which are for theft. The appellant started to commit offences in 1987. Her last conviction was on 11 May 2021 when she was sentenced to 28 days’ imprisonment for shoplifting.

11.  The appellant committed the offence in Case 1 shortly after her release from prison. Furthermore, she committed the offence in Case 2 while she was on bail for Case 1.

12.  The appellant is 54 years of age. She worked part-time at a laundry shop, earning about HK$2,000 a month, and received a disability allowance of HK$2,190 a month.

13.  At first instance, the duty lawyer representing the appellant said in mitigation that she had anorexia when she was in secondary school and had suffered from depression and required psychiatric treatment since then.

14.  The appellant’s father died from kidney disease in 1997. Her mother, aged 92, suffers from bilateral hearing loss and has been taken care of by the appellant single-handedly. As a result of a fracture, her mother was hospitalized in Kwong Wah Hospital for a number of months. She is now ready to be transferred to a convalescent hospital for recuperation. However, due to her remand in custody, the appellant has been unable to attend to matters in relation to the transfer for her mother.

B.3   Reasons for sentence

15.  Before passing sentence, the magistrate called for two psychiatric reports, a psychological report and a background report on the appellant.

16.  In brief, both psychiatric reports showed that it would not be necessary for the appellant to receive in-patient psychiatric treatment at the present stage, but the psychiatrists who prepared the reports opined that she should continue to attend out-patient clinics for follow-up consultation.

17.  The psychological report showed that the appellant’s risk of reoffending is moderate. However, as stated in the background report, the probation officer considered that the appellant failed to deeply reflect on her wrongdoing.

18.  Applying HKSAR v Pang Chak Wai (transliteration)[3] and considering the appellant’s previous criminal convictions, the magistrate took the view that the appellant was a “persistent offender”. He further applied the judgment of the Court of Appeal in HKSAR v Chan Pui Chi[4]to establish the principle of enhancement of sentence.

19.  Having taken into account the overall circumstances, the magistrate was of the view that the only appropriate sentencing option was one of immediate imprisonment. The magistrate adopted a starting point of nine months’ imprisonment for each of the two cases.

20.  In respect of Case 1, the magistrate pointed out that as the date on which the appellant entered her guilty plea was the date originally fixed for trial, he should have reduced the discount to be afforded to the appellant for her guilty plea to 1/4^th  to 1/5^th. However, the appellant had informed the prosecution of her intention before the trial date and therefore saved the prosecution witnesses the need to attend the hearing. Under the circumstances, the magistrate gave the appellant a one-third discount for her guilty plea and eventually sentenced her to six months’ imprisonment.

21.  In respect of Case 2, the magistrate also adopted a starting point of nine months’ imprisonment and sentenced the appellant to six months’ imprisonment after affording her a one-third discount for her guilty plea.

22.  Having regard to the totality principle, the magistrate ordered two months of the sentence for Case 2 to be served consecutively to the sentence for Case 1.

C.   Grounds of appeal

23.  From the statement made by the unrepresented appellant in her “Person in Custody Submission”, she seems to be saying that as a result of her illness, she took the newspapers away while in a confused state of mind and that she tendered the guilty pleas only because she was misled by the staff of the Duty Lawyer Service. However, when I asked her in court if she appealed against the convictions, she made it clear that she only appealed against the sentences.

24.  In her aforesaid “Person in Custody Submission”, the appellant stated: “The value of the items involved was not high. The stores suffered no actual loss. May the court have mercy and impose a lenient sentence.”

D.   The respondent’s reply

25.  The respondent set out in the written submissions the following authorities in the form of a table for my reference.

26.  The respondent submitted that having regard to the above sentencing authorities concerning shoplifting offences, including (2), (3), (5), (7) and (8), one can see that for cases involving theft of items of relatively low value, especially those of not more than HK$100, the court would normally adopt a starting point of three to six months’ imprisonment even after taking into account the aggravating factor of the offender being a persistent offender.

27.  The respondent rightly pointed out that the magistrate did not specify what the appropriate starting point should have been had the appellant not been a persistent offender and what the level of enhancement by reason of her previous similar convictions was. It would be more desirable to indicate the starting point taken by the court and the level of enhancement made as a result of the court’s consideration of the aggravating factor of persistent offending. The respondent submitted that even so, at the hearing of the appeal, the ultimate consideration is whether the eight months’ imprisonment imposed on the appellant is manifestly excessive or wrong in principle[5].

28.  The respondent submitted that in the overall circumstances of the present cases, having regard to the fact that although the stolen goods involved in the two cases were valued at HK$18 and $54 respectively, the appellant had 21 previous convictions for theft, a more appropriate starting point should be three to six months’ imprisonment.

29.  Enhancing the sentence by 25% on account of the appellant’s previous similar convictions and then reducing it by one-third for her guilty plea would result in a term of two and a half to five months’ imprisonment for each case.

30.  The respondent accepted that the magistrate was rather severe in that he adopted a starting point of nine months’ imprisonment for each of the two cases, afforded a discount of one-third for the guilty pleas and imposed a term of six months’ imprisonment for each case. Nevertheless, having regard to the totality principle, the magistrate only ordered two months of the sentence for Case 2 to be served consecutively to the sentence for Case 1.

31.  The respondent submitted that although the final sentence of a total of eight months’ imprisonment for the present cases was rather severe, it was not manifestly excessive.

E.  My considerations

32.  There are no sentencing guidelines for the offence of theft. The magistrate cited Pang Chak Wai (transliteration)[6], per Tong J:

‘“10.  … For cases such as the present one, which involve theft of goods of relatively low value, it is my understanding that, save in exceptional 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 organised 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 nine to 12 months.”’

33.  In HKSAR v Yang Yan Yun[7],Deputy High Court Judge Woo (as he then was) stated:

“17. … 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 three months’ imprisonment. The more similar previous convictions the defendant has, the higher the starting point will be.”

34.  The aforesaid two cases and the authorities cited by the respondent are certainly of reference value. Nevertheless, it remains for me to consider the facts of the present cases and the circumstances surrounding the appellant’s background (in particular, what type of stolen property it was; what the value involved was; under what circumstances the theft took place, etc).

35.  So far as the stolen property (newspapers) and the value ($18 and $54) involved in the present appeals are concerned, if the appellant were a first offender, the court would have imposed a fine. However, the appellant has 22 criminal convictions, 21 of which are for theft. She was indeed a “persistent offender” who committed offences time and again after she had been punished. Under the circumstances, an immediate custodial sentence is warranted.

36.  In respect of Case 1, in my view, given the background of the appellant’s persistent offending and the fact that the two copies of newspaper stolen were valued at $18, the appropriate starting point should be one of eight weeks’ (56 days’) imprisonment, which must be increased by 25% on account of her being a “persistent offender”, making a term of imprisonment of 10 weeks (70 days). As the appellant is entitled to a one-third discount for her guilty plea, the sentence is reduced to one of 47 days’ imprisonment.

37.  In respect of Case 2, the appellant stole six copies of newspaper valued at $54. Against the background of her persistent offending, in my view, the starting point should be one of 10 weeks’ (70 days’) imprisonment. This starting point should be increased by 25% to 88 days by reason of the appellant’s persistent offending. After the appellant is given a one-third discount for her guilty plea, the sentence is one of 58 days’ imprisonment. The appellant committed this offence while she was on bail, and what is more, the cases are of exactly the same nature. I am of the view that the proper approach is to order this term of 58 days’ imprisonment to be served wholly consecutively to the term of 47 days’ imprisonment for Case 1, making a total of 105 days’ imprisonment, and that this overall sentence is in line with the principle of totality.

38.  In view of the above analysis, the starting point of nine months’ imprisonment for each of the two offences adopted by the magistrate is manifestly excessive. The overall sentence of eight months’ imprisonment is also manifestly excessive.

39.  The appellant had been remanded in custody since her arrest for the offence in Case 2. By the time of the appeal hearing, the appellant had been imprisoned for as long as 4 months, which are equivalent to a term of six months’ imprisonment and longer than the term of 105 days’ imprisonment that I find to be appropriate.

F.   Judgment

40.  For the reasons above, I allowed the appeals, set aside the original sentences and substituted them with a term that would allow the appellant’s immediate release.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.