HKSAR v. Fong Sau Mei

[English Translation – 英譯本]

HCMA 435/2021
and HCMA 436/2021
(Heard together)

[2022] HKCFI 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS 435 AND 436 OF 2021

(ON APPEAL FROM WKCC 2716 AND 2717 OF 2021)

__________________

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Before: Hon Barnes J in Court

Date of Hearing and Judgment:  16 February 2022

Date of Reasons for Judgment:  28 February 2022

REASONS FOR JUDGMENT

A. Introduction

1.The appellant pleaded guilty before Miss Ivy Chui, the Principal Magistrate of West Kowloon Magistrates’ Courts (the “principal magistrate”), on 18 August 2021 to three counts of “theft” in two cases, contrary to section 9 of the Theft Ordinance, Cap 210 of the Laws of Hong Kong.  She was sentenced on the same day.  The details are as follows: 

Charge	Date of Offence	Property Value	Sentence
WKCC 2717/2021 (HCMA 436/2021)
1	10/1/2021	HK$1,349.80	Starting point of 12 months’ imprisonment, one-third reduction on account of the guilty plea, 8 months’ imprisonment
2	25/1/2021	HK$248.40	Starting point of 12 months’ imprisonment, one-third reduction on account of the guilty plea, eight months’ imprisonment, of which one month to run consecutively to the term for Charge 1 in WKCC 2717/2021, making a total of nine months’ imprisonment
WKCC 2716/2021 (HCMA 435/2021)
1	11/7/2021	HK$30.40	Starting point of 15 months’ imprisonment, one-third reduction on account of the guilty plea, 10 months’ imprisonment
Overall sentence for WKCC 2717/2021 and WKCC 2176/2021 [sic]			Four months in WKCC 2717/2021 to run consecutively to the term in WKCC 2176/2021 [sic], making a total sentence of 14 months’ imprisonment

2.The appellant appealed against the sentence.

3.After the hearing, I allowed the appeal, set aside the sentence and imposed a term of imprisonment that would enable the appellant’s immediate release.  These are my reasons.

B.      Facts

B.1.   WKCC 2717/2021 (HCMA 436/2021)

Charge 2

4.The facts admitted by the appellant showed that on the night of 25 January 2021, when some police officers were conducting an anti-crime patrol at AEON Stores (Hong Kong) Limited on the Ground Floor of Aqua Marine in Cheung Sha Wan, they found the appellant suspicious and therefore discreetly put her under surveillance.  During the time, the appellant was seen taking from the display shelves five pairs of socks, eight bottles of polymer clay and one dangle charm with a total value of HK$248.4.  She then put them into her own eco-bag and left without paying.

5.The police officers intercepted the appellant and recovered the said items from her eco-bag.  Under caution, the appellant admitted that she committed the offence out of momentary greed.  At the time of the offence, the appellant had HK$1,870 on her person.

6.During the time of observation, the police officers recognized that the appellant was the suspect of another “shoplifting” case that occurred earlier at “Mannings” in So Uk Estate, Cheung Sha Wan.

Charge 1

7.According to the CCTV footage of “Mannings”, on 10 January 2021, the appellant stole from the shop two bottles of bird’s nest and five packets of monkey bezoar powder with a total value of HK$1,349.8.  She put them into her own eco-bag and left without paying.  Under caution, the appellant admitted that she committed the offence out of momentary greed and was remorseful.  She promised that she would not re-offend in future.  The appellant stated that all the bird’s nest and monkey bezoar powder involved had been consumed by her at home.

B.2.   WKCC 2716/2021 (HCMA 435/2021)

8.On the morning of 11 July 2021, the manager of “Wellcome Supermarket” located at 1/F, Un Chau Shopping Centre, Cheung Sha Wan, Kowloon saw from the CCTV in the control room that the appellant took one can of Red Bull from the display shelf and put it into her own eco-bag.  She also took a bottle of Pocari Sweat, put it into the left front pocket of her dress and left the shop without paying.  The manager went out of the control room to chase after the appellant and subsequently intercepted her on the Ground Floor of Un Chau Shopping Centre where the said beverages with a total value of HK$30.4 were recovered from her.  The police arrived and arrested the appellant.  Under caution, the appellant admitted that she committed the offence out of momentary greed.

9.At the time of the offence, the appellant was on police bail for WKCC 2717/2021.

C.      The appellant’s background and mitigation

10.The appellant is 31 years of age, married and her husband stays in Hong Kong as a refugee.  They have a 6-year-old son.  The appellant is living with her son, mother and younger sister.  Prior to her remand, she was a sales supervisor earning a monthly income of HK$12,000 among which HK$5,000 were given to her mother and son for household expenses.  The appellant was the sole breadwinner of the family and her son was usually taken care of by her mother.

11.The defence submitted in mitigation that the appellant understood that her son already reached the age of six and would soon begin studying in primary one, and that she appreciated it was time for her to start afresh and teach her son that one must bear the consequences of one’swrong doing. The appellant promised that she would genuinely rehabilitate herself and did not want to disappoint her son any further.  Moreover, some of the property involved was also recovered[1].

12.The appellant had a record of 20 court appearances involving 22 offences.  All the offences were related to dishonesty and 16 of which were “shoplifting” offences.  The defence confirmed in court that the appellant understood that she was last sentenced in November 2019 to a total term of 12 months’ imprisonment for two “shoplifting” offences.  The subject offences of the two charges in WKCC 2717/2021 (HCMA 436/2021) both took place in January 2021.  Therefore, they were committed shortly after she had been released from prison.  Moreover, the offence in WKCC 2716/2021 was committed while the appellant was on police bail for WKCC 2717/2021[2], which was an aggravating factor.

13.The appellant understood that she had an appalling record.  However, she was determined to rehabilitate herself and hoped that the court would give her a final chance.

D.      Reasons for sentence

14.The sentencing considerations of the principal magistrate were as follows:

“8. In HKSAR v Pang Chak Wai (transliteration), HCMA 310/2009, in paragraph 10 of the judgment, Tong J had the following observation on the sentencing principle for shoplifting cases:

‘(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 9 to 12 months.’

9. In HKSAR v Tran Thi Le Quang, HCMA 659/2002, the appellant admitted two theft offences that were committed in just half a year’s time after she had been released from prison.  The two offences were only 10 days apart.  Charge 1 involved three boxes of Brand’s bird’s nest with American ginseng and rock sugar valued at $657 in total and Charge 2 involved a T-shirt valued at $65.  She had a record of 17 theft convictions.  The magistrate adopted nine months as the starting point for each charge and reduced each to six months on account of her guilty pleas.  The two terms were to run wholly consecutively, making a total sentence of 12 months’ imprisonment.  Having considered the facts of the two charges, the appellant’s background, her persistence in committing offences with no attempt made to rehabilitate herself and the previous total term of 14 months’ imprisonment yet to have any deterrent effect on her, Deputy Judge To held that the overall sentence was entirely appropriate and dismissed the appeal.

10. Back to the present case, according to the criminal record of the defendant, she had been constantly committing offences related to dishonesty starting from 2005 and had been given various types of sentences by the court including probation order, community service order, rehabilitation centre, training centre, suspended sentence and immediate custodial sentence.  On the one hand, the defendant said in mitigation that she would start afresh and wished to stay with her six-year-old son when he was growing up, but on the other hand, she was a recidivist committing crimes in a short space of time and even while she was on bail.  The defendant was sentenced on 8 October 2019 to four months’ imprisonment for a “shoplifting” offence.  She was further sentenced to a total term of 12 months’ imprisonment for two “shoplifting” offences later on 27 November of the same year, and yet the defendant committed further offences in WKCC2717/2021 and WKCC2716/2021 shortly after she had served the sentence of those two offences.  Obviously, the defendant did not learn any lesson from the previous sentences and was not serious about rehabilitating herself.  Even though the items involved in both WKCC2717/2021 and WKCC2716/2021 did not command a high value, as the Court of Appeal stated in Pang Chak Wai, 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.

11. I understand that a defendant should not, of course, be punished for previous offences for which she has already served the penalty.  Nevertheless, if a defendant repeatedly commits offences, particularly similar offences and has demonstrated a complete disregard for the law, the court is entitled to treat such affront to the law as an aggravating factor with a view to the protection of the public from yet further repetition. See HKSAR v Leung Tong, [2001] 1 HKLRD 526[3].

12. Before sentencing, I have taken into account the facts of the two cases, the defendant’s mitigation submission, her personal background and criminal record, the value of the stolen property in each case and the relevant authorities.  I am of the view that the only solid mitigating factor is the defendant’s plea of guilty to all charges.  The sentence is as follows:

WKCC2717/2021:

Charge (1): “Theft”

I adopt 12 months’ imprisonment as the starting point.  The defendant is sentenced to eight months’ imprisonment on account of her guilty plea.

Charge (2): “Theft”

I adopt 12 months’ imprisonment as the starting point.  The defendant is sentenced to eight months’ imprisonment on account of her guilty plea.

Although the two offences took place at different times with different victim companies, having considered the totality principle, I order one month of the eight months’ imprisonment for Charge (2) to run consecutively to the term for Charge (1), namely, a total term of nine months’ imprisonment in WKCC2717/2021.

WKCC2716/2021:

One count of “Theft”

I adopt 12 months’ imprisonment as the starting point, but the defendant committed the crime while on police bail for WKCC2717/2021, which is an aggravating factor for which the starting point is enhanced by 3 months to 15 months.  After a one-third reduction on account of the defendant’s guilty plea, the defendant is sentenced to 10 months’ imprisonment.

13. Having further considered the totality principle, I take the view that an overall sentence of 14 months’ imprisonment is sufficient to reflect the culpability of the defendant in the two cases.  Therefore, I order four months out of the nine  months in WKCC2717/2021 to run consecutively to the term in WKCC2716/2021, making a total term of 14 months’ imprisonment.”

E.      Grounds of appeal

15.Mr James Wong, counsel for the appellant, advanced four grounds of appeal and submitted that the sentence was wrong in principle and manifestly excessive.

E.1.   Ground 1

16.In sentencing, the principal magistrate failed to sufficiently consider the gravity of the charges; namely, the relatively low value of the items involved, and erred in adopting 12 months’ imprisonment as the starting point. 

E.2.   Ground 2

17.The principal magistrate erroneously emphasized that the sentence passed on the appellant’s previous theft conviction would be taken into account without considering independently that her previous theft conviction involved different facts, because the previous case was possibly more serious than the present one.

E.3.   Ground 3

18.The principal magistrate should have indicated the starting point of sentence adopted for the charges and then the extent of enhancement.  However, the principal magistrate failed to indicate what the appropriate starting point should have been had the appellant not been a persistent offender, and what the enhancement for her being a persistent offender was.   The principal magistrate simply stated the starting point after enhancement, which rendered it impossible for the appellate court to know the extent of enhancement adopted for this factor of “persistent offender” and what percentage of increase it represented in the sentence, nor was it known what percentage of enhancement it was for the appellant “committing the offence while on police bail”.

E.4.   Ground 4

19.The principal magistrate sentenced the appellant to a total term of 14 months’ imprisonment after considering the totality principle:

(a)  This was a “crushing sentence” to the appellant, which was manifestly excessive;

(b)  The court should avoid ever-increasing sentences by reason of distasteful facts and restraint must be exercised.

F. Authorities in relation to shoplifting

20.Both the appellant and the respondent provided me with a series of shoplifting cases for reference:

Stolen property and value	Number of similar convictions	Sentence
(1) HKSAR v Woo Kwok Keung (transliteration) HCMA 206/2005
One count of theft: the appellant put on an upper garment of $400 in value and left without paying.	76 criminal convictions, of which 40 were similar.	The magistrate adopted 12 months’ imprisonment as the starting point, reducing the term by one-third on account of the plea of guilty, and sentenced the appellant to eight months’ imprisonment. The Court of First Instance held that there was nothing wrong in enhancing the starting point to 12 months since the offence was committed shortly after the appellant was released.
(2) HKSAR v Ng Kwok Hung (transliteration) HCMA 318/2007
One count of theft: the appellant took away from the supermarket four bottles of red wine with a total value of $956	22 criminal convictions, most of which were related to shoplifting	The most recent three convictions of the appellant were all for shoplifting, and for two of them he was sentenced on 30 September 2005, each to six months’ imprisonment, with the two terms to run consecutively. He was sentenced on 25 October 2006 to four months’ imprisonment for the last conviction.  The offence in the present case was committed shortly after the appellant had been released from prison for that case. The Court of First Instance held that the starting point should be nine months and then enhanced to 12 months on the ground that the appellant was a persistent offender.
(3) HKSAR v DINH, THI-HA HCMA 429/2016
One count of theft: the appellant took away from the supermarket two boxes of ice lollies, one bottle of bleach, three cartons of beverages, and five packets of candy (a total value of HK$99.50), put the said items into her own eco-bag and left without paying	25 criminal convictions, of which 20 were related to theft or attempted theft	The magistrate took the view that the enhancement should be 20% for the appellant being a persistent offender. Therefore, the magistrate finally adopted 12 months’ imprisonment as the starting point, gave a one-third reduction to the appellant that he was entitled to for his plea of guilty, and eventually sentenced the appellant to eight months’ imprisonment. The Court of First Instance dismissed the appellant’s appeal against sentence and upheld the original sentence.
(4) HKSAR v Li Hei Chuen (transliteration) HCMA 399/2012
Three counts of theft: (1) 2 boxes of Bo Ying Dan $900-odd in value. (2) In less than one month, while on bail, the appellant stole three boxes of pills with a total value of $600. (3) While still on bail, the appellant again stole food items valued at $100-odd in total.	81 criminal convictions, of which 34 were for theft, and of which 13 were for shoplifting	The magistrate adopted six months’ imprisonment as the starting point for each count and reduced the term by one-third to four months on account of the plea of guilty.  It was ordered that all three sentences were to run consecutively, making a total term of 12 months, on the ground that the offences in counts (2) and (3) were committed while the appellant was on bail. The Court of First Instance dismissed the appellant’s appeal against sentence and upheld the original sentence.
(5) HKSAR v Ng Wing Shing (transliteration) HCMA 915/2018 [sic]
One count of theft: Stealing from a convenience store one bottle of Coca Cola $7.5 in value	24 criminal convictions, of which 13 were related to dishonest conduct	The magistrate adopted nine months’ imprisonment as the starting point, reduced it by one-third on account of the plea of guilty, and sentenced the appellant to six months’ imprisonment.  The appellate court stated that although the act of random theft was repulsive, the sentence must be “proportionate” to the offence, and varied the sentence to one of 80 days’ imprisonment.
(6) HKSAR v Lam Kwai Wa HCMA 1078/2002
One count of theft: the appellant stole two packets of cake $20 in value	31 convictions, of which 11 were theft-related	The magistrate adopted six months’ imprisonment as the starting point. The appellate court held that the starting point should not exceed three months, and enhancement by reason of similar previous convictions should only be 25%. The sentence was reduced to 10 weeks’ imprisonment on account of the plea of guilty.

G.      My consideration

21.There is no sentencing guideline for theft offences, each of which is decided on its own facts.  In Yang Yan Yun[4], Deputy Judge Woo (as he then was) agreed with the judgment of Tong J in Pang Chak Wai[5]. The judgment was also cited by the principal magistrate in her Reasons for Sentence:

“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 in number] 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 9 to 12 months.”

22.After referring to the many decided cases, Deputy Judge Woo stated that “the courts have invariably sentenced recidivists or persistent offenders to imprisonment or enhanced their sentences.  If the [items] involved [are] very [small in number], such as daily food and beverages, and [do] 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 3 months’ imprisonment; the more similar previous convictions the defendant has, the higher the starting point will be.” (paragraph 17 of the judgment)

23.I agree with the view of the two learned judges.  Nevertheless, I consider that in sentencing, the starting point must be assessed by considering, firstly: What kind of items are involved?  What is the value?  All the circumstances of the offender’s commission of the theft,such as whether he/she is a first offender, must be considered before further considering whether there is any “aggravating” and/or “mitigating” factor. 

G.1.   HCMA 436/2021

24.In HCMA 436/2021, in respect of Charge 1, I consider that 10 months’ imprisonment is the appropriate starting point given that the goods stolen by the appellant were worth $1,349.80.  The appellant being a recidivist with previous convictions warrants an enhancement of 20% to 12 months’ imprisonment.  With a one-third reduction on account of the appellant’s guilty plea, the sentence is eight months’ imprisonment.  For this count, the eight months’ imprisonment imposed by the principal magistrate on the appellant is appropriate.     

25.In respect of Charge 2, it took place 15 days after the appellant had committed Charge 1 and the items stolen were worth $284.4 in total.  The starting point of sentence is four months’ imprisonment, which is enhanced by 25% to five months’ imprisonment in view of the appellant being a recidivist.  With a one-third reduction given to the appellant, the sentence is three months and 20 days’ imprisonment.  Having considered the principle of totality, the overall sentence on the two charges should be nine months’ imprisonment.  

26.Although the sentence of eight months’ imprisonment for Charge 2 imposed by the principal magistrate on the appellant was too harsh, the overall sentence of nine months’ imprisonment that she imposed is the same as the sentence that I consider appropriate.

G.2.   HCMA 435/2021

27.In respect of HCMA 435/2021, I must emphasize that the items stolen by the appellant were only beverages of $30.4 in value.  It should have been dealt with by way of a fine had the appellant been a first offender.  Given that the appellant is a persistent offender, the court must consider an immediate custodial sentence. In my view, the appropriate starting point is six weeks (42 days).  As the appellant is a recidivist, I consider that the degree of enhancement should be 25% to make it 52 days’ imprisonment.  After a one-third reduction is given to the appellant, the sentence is 35 days’ imprisonment.

28.It appears that the principal magistrate, in adopting a starting point of 15 months, put too much emphasis on the appellant being a “persistent offender” and overlooked the very low value of the items involved.  Therefore, the sentence of 10 months’ imprisonment was too harsh.  I accept the complaint of the appellant about the sentence on this charge.

29.As the appellant committed the offence while on bail, the term of 35 days’ imprisonment should be made wholly consecutive to the term of nine months’ imprisonment in the above case.  I am of the view that an overall sentence of 10 months and five days’ imprisonment on the three charges is in line with the totality principle.

30.I was informed that the appellant had been remanded in custody from 12 July 2021 and detained for seven months as at the date of the appeal hearing, which is equivalent to a term of 10½ months’ imprisonment, a sentence heavier than what I consider appropriate.

F. Ruling

31.For the above reasons, I allowed the appeal.  The original sentence was set aside and substituted with a term of imprisonment that would enable the appellant’s immediate release.

Mr Lai Kai Yeung, Anson, Public Prosecutor of the Department of Justice, for the respondent

Mr James L.W. Wong, instructed by the Legal Aid Department, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.