R. v. WU CHI-HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 442 OF 1994

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J U D G M E N T

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1. On 25th April 1994 at North Kowloon Magistrates' Court, the Appellant pleaded guilty to an offence of theft. He had stolen a wallet from the shirt pocket of a man in front of him in a queue at one of the Jockey Club's off-course betting centres. He was caught red-handed by a police officer in plain clothes who had observed what he had done. He was sentenced to 18 months' imprisonment. He now appeals against his sentence.

2. The Appellant has a bad record for crimes of dishonesty. Although his last conviction was in 1987, his record was such as to entitle the magistrate to characterise him as "a very practised and experienced pick- pocket". Mr. Nicholas on his behalf does not dissent from that description of him.

3. In Vy Van Kien [1991] 1 HKLR 422, Penlington J.A. said that the offence of pick-pocketing was prevalent in Hong Kong, and a proper starting point was 12 - 15 months' imprisonment. He added that aggravating features which would justify an increase in the usual level of sentence included the commission of the offence in places where the public are ordinarily at risk, such as on public transport and in crowded places, and the fact that the offender was part of an organised gang. The Jockey Club's off-course betting centres are, in my view, places where the public are ordinarily at risk, and I regard that as a sufficiently aggravating feature which would have justified the magistrate in taking 18 months' imprisonment as his starting point.

4. The magistrate did not say in his Reasons for Sentence what his starting point was, but I doubt whether he would have started higher than that. If that is correct, the magistrate gave no credit for the Appellant's plea of guilty, despite saying that he was giving the Appellant some credit for that. It may be that he had in mind what Bokhary J. (as he then was) said in Trinh Quang Hung (MA 1012/89) - that a bad record can cancel out any discount to which a defendant might otherwise be entitled in the light of his plea. However, Trinh Quang Hung was expressly disapproved in Vy Van Kien, in which Penlington J.A. referred to both U.K. and Hong Kong authority for the proposition that previous convictions are not aggravating factors, justifying an increase in the sentence which would otherwise have been imposed on the evidence in the particular case.

5. In my view, the magistrate fell into error, either in taking as his starting point a term of imprisonment in excess of 18 months, or more likely in failing to give the Appellant credit for his plea. In my view, 18 months' imprisonment would have been the correct starting point, and a proper discount to reflect the Appellant's plea of guilty in the circumstances of this case would have been 3 months' imprisonment. Accordingly, at the risk of being accused of tinkering with the sentence imposed by the magistrate, I allow this appeal, and I substitute for the sentence of 18 months' imprisonment imposed by the magistrate a sentence of 15 months' imprisonment.