The Queen v. Wong Kwong Yin

HCMA000264/1988

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H E A D N O T E

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THEFT FROM VEHICLE - PROPER SENTENCE - CONCURRENT OR CONSECUTIVE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 264 OF 1988

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BETWEEN

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Coram: Hon. Bewley J. in Court

Dates of hearing: 28th June and 7th July 1988

Date of delivery of judgment: 7th July 1988

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J U D G M E N T

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1. The appellant pleaded guilty to six charges of theft from a vehicle. He was sentenced by Mr Remedios at Shatin Magistrates Court to four months consecutive on each charge, a total of two years imprisonment.

2. The thefts were committed on two consecutive nights at two different locations in Taipo. In some cases the property stolen was of small value but, in others, articles such as radios, clocks and tools were taken.

3. The appellant was arrested in consequence of his own greed. Not content with stealing, he telephoned the victim in Charge B and tried to sell him his own property for $6000. A trap was subsequently set by the police and the appellant was arrested. All the property was recovered.

4. The appellant has nine previous convictions, mostly for drug offences, but including two for theft and one for blackmail. He has been detained at a Drug Addiction Treatment Centre four times between 1983 and 1987, but has not hitherto been sentenced to imprisonment.

5. The only mitigating factor was the plea of guilty, which saved the court's time and merited some discount in sentence.

6. Mr King, for the appellant, submits that the total sentence is too severe and that it was wrong to make all_. the sentences run consecutively.

7. There do not appear to be any reported decisions on sentencing for this offence. There can, I think, be no criticism of four months as a proper sentence for a single offence when there is only a guilty plea as mitigation.

8. In Lui Shu Tong v. R.⁽¹⁾, Hogan C. J. giving the judgment of the Full Court, said at p. 136:-

"We are of the opinion that the best course for a Court to adopt in passing sentences is to decide firstly what, in all the circumstances, including both the background of the offence and the offender, is an appropriate sentence for each offence. Then, the Court should consider whether any particular group of offences arises out of the same set of facts, so that it can be said that the whole group of offences are inter-connected with one another."

Later he said :-

"Finally, it is appropriate that, a court should, when sentencing, have regard to the overall effect of the sentences imposed by it in respect of a number of offences and satisfy itself that the aggregate punishment is, in the circumstances, adequate but not excessive."

9. In R. v. Brown ⁽²⁾, the English Court of Appeal held that it was not good practice to pass a multiplicity of short sentences consecutively, adding up to a substantial sentence, for a series of transactions.

10. Counsel has also drawn my attention to a passage in Thomal' Principles of Sentencing, 2nd Ed. at p. 55 "A thefts of thefts in different shops in the course of one formed part of 'a single shoplifting expedition' for which consecutive sentences were held to be incorrect."   The authority cited in support of this proposition is R, v. Lyons⁽³⁾.

11. More important, however, is the overall sentence. I think two years was too severe in this case. Allowing three months discount for the guilty plea, I consider that the proper sentence was one of 15 months imprisonment.

12. Giving effect to the principles cited above, the sentences on Charges A and B are increased to six months concurrent and those on Charges C, D, E and F to nine months concurrent. The sentences on Charges C, D, E and F will run consecutively to those on Charges A and B.

13. To this extent the appeal is allowed.

(1) [1961] H.K.L.R 129

(2) [1969] 54 C.A.R. 176

(3) 1975 C.A. decision (unreported)

Representation:

Mr S.R. Bailey, Crown Counsel, for Respondent.

Mr Alexander S. King (assigned by D.L.A.) for Appellant.