HKSAR v. HO KA KUI AND ANOTHER

HCMA 1096/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1096 OF 1998

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J U D G M E N T

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1. This is an appeal against a sentence of 12 months imprisonment imposed upon the first appellant at Eastern Magistrates Court following his plea of guilty to an offence of theft, and an appeal against both conviction and sentence imposed upon the 2nd Appellant who was convicted after trial of the same offence of theft. He too was sentenced to a term of 12 months imprisonment.

2. I will deal firstly with the 2nd Appellant's appeal against conviction. The learned Magistrate in his Statement of Findings deals succinctly with the case before him as follows:-

"On the 5th of September 1998, 2 officers (PW1 and PW2) were on anti-crime patrol with other officers at the Times Square. At approximately 4:30p.m. D1 and D2 were seen acting furtively and it was decided to keep them under observation. D1 and D2 were together most of the time while they moved about Times Square and were seen speaking to each other on several occasions.

The officers followed both defendants to the fourth floor where they entered the shop G2000. PW1 followed them inside the shop while the others waited outside to cover any avenues of escape. PW1 had an unimpeded view of what D1 and D2 did inside the shop. As PW1 was standing some 5 feet away he saw D2 remove a pair of mens trousers from the clothes rack and passed it to D1 who was standing one foot away from him. D1 then also took another pair of mens trousers from the rack and then rolled both pairs together and hid them under his armpit. At this both defendants left the shop without paying, followed by PW1. Outside the shop D1 was seen to put both pairs of trousers into the Welcome Supermarket Plastic Bag he was carrying and continued to walk away.

The other officers were alerted and both defendants were stopped and arrested. PW2 discovered the trousers in the shopping bag.

D2 gave evidence on his own behalf. He did admit that D1 was his friend and that he had been with him during the afternoon of the 5th September. They had gone into G2000's shop in Times Square and that he had looked at clothes and trousers. He denied any part in the stealing of the trousers.

D1 HO Ka-kui gave evidence. He told the Court that he himself had stolen the two pairs of trousers and that D2 was not involved in anyway.

I found PW1 and PW2 to be truthful and accurate witnesses, I believed them. The only evidence relating to what happened in the G2000 shop came from PW1. This plain clothes police officer was specifically following and watching both these 2 men. Inside the shop he was within a very few feet of them with a clear view of what each of them was doing. He was not shaken in any way during cross-examination. This was a clear and simple example of a joint-enterprise.

No burden of proof rested upon the defendant but nevertheless having seen and heard him give evidence I did not believe him and his co-accused called to give evidence on his behalf.

I was sure beyond all reasonable doubt that the prosecution had proved the essential elements of this offence and convicted the defendant accordingly."

3. Before me the 2nd Appellant, who is not legally represented, has sought only to argue that the learned Magistrate was in error in accepting the evidence of the police officers because there were inconsistencies in that evidence. Having examined that complaint I find that there were no inconsistencies. The 2nd Appellant's appeal against conviction must therefore be dismissed.

4. I come now to the matter of sentence. Putting the matter shortly the 2nd Appellant says that the sentence of 12 months imprisonment imposed upon him was excessive; that other persons of his acquaintance convicted of shop-lifting received much shorter sentences. On behalf of the 1st Appellant Mr Fenton complains firstly that there was clear disparity in the sentences imposed upon the appellants given that the 1st Appellant had pleaded guilty and received an identical sentence to that imposed on the 2nd Appellant who was convicted after trial.

5. Mr Fenton points out that both appellants have bad criminal records going back over 20 years: the 1st Appellant was last convicted of an offence of theft in August 1997 when, inter alia, he was sentenced to 6 months imprisonment, whilst the 2nd Appellant was last convicted of theft in February 1998 when he was sentenced to 3 months imprisonment. Mr Fenton also argues that both the appellants are of similar age; that they are both on public assistance and are both as culpable of the offence of theft on the facts before the learned Magistrate.

6. I just pause here to remark that in his reasons for sentence the learned Magistrate said that in relation to the first appellant he was adopting a starting point in sentence of 18 months imprisonment which he then reduced to 12 months by virtue of the first appellant's plea. The learned Magistrate made no mention of any starting point in sentence in relation to the second appellant; he simply said

"Taking everything into account I considered a period of 12 months to be the appropriate sentence."

7. I confess to finding it difficult to understand how the learned Magistrate arrived at these terms. Logic would dictate that if 18 months was indeed the appropriate starting point then the second appellant should have received that sentence.

8. By sentencing the second appellant to a term of 12 months imprisonment, I can only assume that in fact that was the Magistrate's starting point for him and, if so, that is the starting point which should (in the circumstances) have been adopted in relation to the second appellant.

9. That is not the end of the matter. Assuming that in reality 12 months was the starting point for both appellants Mr Fenton joins with the second appellant in arguing that such was, of itself, too high for an offence of shop lifting of this nature. He further argues that the learned Magistrate appears to have sentenced both appellants on the basis of their past criminal records.

10. With respect I do not agree with either of those two arguments. What the learned Magistrate said, inter alia, concerning the first appellant was - and I quote:-

"Here was a man with 12 previous convictions of similar nature for whom sentences of imprisonment either immediate or suspended seem to have little or no effect. It was a planned deliberate offence ......"

What he said, inter alia, concerning the second appellant was - and again I quote:-

"The defendant was a man for whom fines, suspended sentences or periods of imprisonment have little effect in stopping his thieving. In particular I note that he had appeared in February of this year and (was) sent to prison for theft and had returned to his old ways in early September."

11. Apart from the disparity argument on behalf of the first appellant, which argument is not contested on behalf of the prosecution, there is nothing in these appeals.

12. The appeal against sentence by the first appellant is allowed to the extent that his sentence will be reduced to one of eight months imprisonment. The appeals against both conviction and sentence by the second appellant are dismissed.