HKSAR v. CHEUNG WING SUN

[English Translation – 英譯本]
HCMA 1088/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1088OF 2007

(ON APPEAL FROM KCCC NO. 6436 OF 2007)

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JUDGMENT

1. The appellant was convicted on his own plea before the Principal Magistrate on one count of ‘theft’, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 12 months’ imprisonment. He now appeals against sentence.

Admitted facts

2. The facts show that shortly after 4 a.m. on the material day, while patrolling in Apliu Street in Sham Shui Po, a police officer saw the appellant sitting inside a private car parked at the roadside and pushing the door open to get off. However, when he saw the officer approaching, he immediately closed the car door. This aroused the suspicion of the officer, so he told the appellant to alight for enquiries. The officer subsequently found approximately $40 in coins from the trousers’ pocket of the appellant. Under caution, the appellant admitted that he had stolen the coins from the car in a moment of greed.

3. The police then made investigation. The owner of the car in question confirmed that after he had parked it at the above location, he might have forgotten to lock it. The car owner also claimed that the coins were kept inside the car.

Reasons for sentence

4. The Principal Magistrate’s reasons for sentence are as follows:

There are no clear sentencing guidelines for this kind of cases. The Court of Appeal has considered the sentence for this type of offence on numerous occasions, but no clear guideline has been laid down. Therefore, the term of imprisonment may range from 4 months (for a first offender) to 15 months (for a re-offender). In the case of Woo Ming On (MA 1028/1997), the Court of Appeal confirmed the adoption of 12 months’ imprisonment as the proper starting point for a conviction of theft of a mobile phone from a vehicle.

This sort of cases is very prevalent in the jurisdiction of the Kowloon City Magistrates’ Courts. As an offender will have to attempt to open the door of every vehicle parked there, he is definitely not a common opportunistic offender. Although the amount involved in the present case is not substantial, this does not undermine the severity of the offence.

The defendant is a 36-year-old adult with extensive criminal convictions: he has 17 transgression records, mostly relating to offences involving dishonesty. His last four transgressions were all thefts. In March 2004, he was even sentenced to 6 months’ imprisonment for an offence of the same kind. He can therefore be described as a recidivist, and this is an aggravating factor.

Having considered all the above factors, I adopt 18 months as the starting point. As the defendant has pleaded guilty, his sentence is reduced to 12 months. By imposing a heavy sentence, this court hopes that it will exert a deterrent effect on the defendant as well as on those who are minded to commit the same.

Ground of appeal

5. The ground of appeal put forward by Mr Chan, Counsel for the appellant, is essentially that the starting point of 18 months is manifestly excessive.

6. Mr Chan agreed that there are no sentencing guidelines for this type of cases. He submitted that the circumstances of the appellant were at variance with those in the case of Woo Ming On[1] cited by the Principal Magistrate: Woo Ming On had 14 previous convictions, 6 of which related to offences involving dishonesty; the appellant in the present case had 17 transgression records, most of which related to offences involving dishonesty. Mr Chan submitted that the appellant had only one prior conviction of theft from vehicle, for which he had been sentenced to 6 months’ imprisonment. Mr Chan also submitted that in view of the property involved in the present case ($40 in coins) and that in Woo Ming On (a mobile phone), the present case involved a lower degree of criminality, and hence the Magistrate should not have imposed a starting point higher than that in Woo Ming On.

7. Relying on the judgment in Tai Man Lung[2], a case on shoplifting, Mr Chan contended that even if the starting point was to be enhanced by reason of the appellant being a ‘recidivist’, the enhancement should not exceed 25%.

The respondent’s reply

8. Ms Wan, Counsel for the respondent, replied that the appellant had 17 criminal records, 14 of which involved theft and one involved ‘obtaining property by deception’; and a total of 28 counts of ‘dishonesty offences’ were involved, one of which was ‘theft from vehicle’, that being just one type of ‘theft’.

9. Ms Wan submitted that the appellant was obviously a ‘recidivist’ as he committed the present offence shortly after serving 10 months’ imprisonment for an offence of ‘theft’, which meant that the previous sentences had no deterrent effect on him.

10. Ms Wan relied on the case of Chan Pui Chi[3] and submitted that in respect of a ‘recidivist’, the starting point should be enhanced in order to achieve a deterrent effect. Ms Wan submitted that the level of enhancement would depend on the facts of the case and the particular circumstances of the defendant, and that there was no hard-and-fast rule against an enhancement of over 25%.

11. Ms Wan submitted that, having regard to the facts in the present case and the conviction records of the appellant, a starting point of 18 months was on the high side but not manifestly so, and the term of 12 months imposed in the end was not manifestly excessive.

Judgment

12. The appellant is a typical ‘recidivist’ with an appalling conviction record. He has had 17 court appearances and 43 conviction records, of which 27 are for thefts and 8 are for offences involving dishonesty. Although Mr Chan stressed that the appellant has only once been convicted of ‘theft from vehicle’, the fact remains that the appellant has repeatedly committed thefts. ‘Theft from vehicle’ is merely one type of theft.

13. Understandably, there are no sentencing guidelines for offences of ‘theft’, which may involve the most diverse of circumstances. A magistrate has to take into account the facts and all other circumstances of a case, including the defendant’s background, before determining the appropriate sentence.

14. A magistrate is entitled to take into consideration sentences imposed in similar cases. However, in my judgment, it is undesirable to make a comparison between shoplifting and theft from vehicle, which are different in nature.

15. The appellant stole $40 from a car. It may be said that this was because only $40 was kept there, not because the appellant chose to steal less. To a certain extent, it is true that the appellant committed the theft by taking advantage of the oversight on the part of the owner who did not lock the car properly. However, the appellant’s act was not unplanned and impromptu.

16. In light of the appellant’s conviction records and applying the principle laid down in Chan Pui Chi, the Magistrate, having fixed a starting point, should have enhanced it reasonably.

17. The Principal Magistrate mentioned that this sort of cases was highly prevalent in the jurisdiction of the Kowloon City Magistracy. With his many years of experience sitting on the bench in that particular court, he was entitled to make such a finding.

18. Having considered all the circumstances pertaining to the commission of the offence by the appellant, an immediate custodial sentence is inevitable. Although the amount involved is admittedly small, I rule that the proper starting point should be 12 months. As the appellant has repeatedly committed the offence despite sentences imposed in the past, the starting point has to be enhanced so as to achieve deterrence. Having considered all the circumstances, I rule that a 25% enhancement is appropriate, which means that the starting point should be 15 months.

19. The Principal Magistrate took 18 months as the starting point, which is equivalent to a 50% enhancement. This is obviously too severe. Taking 15 months as the starting point and giving a one-third discount for the appellant’s guilty plea, the proper term of imprisonment should be 10 months.

20. For the above reasons, the appeal is allowed. The term of imprisonment of 12 months is set aside and substituted by a term of 10 months.

[1] HKSAR v. Woo Ming On, HCMA 1028/1997

[2] HKSAR v. Tai Man Lung (transliteration), HCMA 704/2003

[3] HKSAR v. Chan Pui Chi [1999] 3 HKC 848