R. v. CHAN LAI PING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 715 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of theft. It was in fact a shoplifting in a supermarket. I notice that although the amount stolen was only H$56.00 for quite a number of items, she was sentenced initially to six months imprisonment and the court also activated a three months suspended sentence to be served consecutively, making a total of nine months. On review, this was reduced to eight months on what the learned Magistrate said was compassion ground. She now appeals against sentence.

2. Counsel for the appellant informs me that the Crown concedes that the sentence of five months imprisonment is on the high side. The Crown wants to "uphold the principle" as set out in the case of R. v. Ho Tak Mui [1991]2 HKLR 637 decided by Hooper J. to the effect that it is an aggravating circumstance that a defendant should commit an offence during the operational period of a previous sentence for precisely the same offence.

3. Counsel for the appellant is content with the concession and do not wish to pursue the argument on this principle.

4. I do not think it is an appropriate case for me to enter into an argument or decide on this point. I take note of the record of the appellant since December 1988. She has been committing plenty of thefts and shoplifting. And up to the time she was sentenced in respect of the present case, she had already committed six thefts. This is the seventh time and what is more, after that case four days later, she was also sentenced for another theft, the eighth case, to one month which is to run consecutively with the sentences in the present case. In these circumstances, I do not think activating the suspended sentence is wrong in principle. It is not punishing a person for a second time. It is simply deferring the punishment on condition that he or she behaves within that suspension period.

5. As far as the starting point adopted by learned Magistrate is concerned, I notice that for the last few years, for similar thefts, the appellant had been sentenced to three months, sometimes, suspended, sometimes immediately executed. In my view, it does seem that this is the case where the learned Magistrate is correct to adopt a higher staring point. I cannot say that starting point for five months is against principle or manifestly excessive.

6. However, bearing in mind that there is another three months activated and another one month in respect of the eighth offence, it seems that if at the time when the magistrate was supposed to sentence her for this case he had known of the eighth offence, then applying the totality principle, a total sentence of nine months now would seem to be excessive. I think the Crown has quite properly conceded that. In the circumstances of the case, taking the most favourable view of the family background of the appellant, I would allow the appeal and direct that of the five months imprisonment, three months would be concurrent with the other sentences. In other words, there would be two months consecutive with the three months activated sentence and the one month for the eighth offence, making a total of six months.