The Queen v. Chan Pak Lok

HCMA001622/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1622 of 1990

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BETWEEN

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Coram: Hooper J. in Court

Date of hearing: 28 December 1990

Date of delivery of judgment: 28 December 1990

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JUDGMENT

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1. On 5th October 1990 the appellant was convicted on his own plea of a single charge of theft.

2. The particulars of the charge alleged that he had committed the offence on the 28th September 1990 at the 7-eleven Shop on the Ground Floor, 42, Woosung Street, Kowloon in Hong Kong and did steal one Reader's Digest (Chinese edition) of October, 1990 and one transparent paper containing 6 pockets of tissue of 'Snoopy', the property of CHAN Kwok-ki.    The magistrate sentenced him to 6 months imprisonment.

3. It is against this sentence that the appellant appealed.

4. Having allowed his appeal and given a short oral judgment in court, I now record written reasons for the judgment.   The appellant was represented by Mr. Lambert K.C. LEE at the appeal who submitted perfected grounds of appeal in which he claimed that the learned magistrate failed to attach any or any sufficient weight to the appellant's plea of guilty and the fact that the appellant has an aged mother who resides at an old age home, and that in all the circumstances the sentence was manifestly excessive.

"The admitted facts were in the following terms:-

1.    At material time, PW 1 saw defendant take exh 1 and 2 from the display shelf covered by exh 3 which was placed under his armpit, then left the shop without payment.   PW 1 thus followed defendant and stopped him outside the shop.   Afterwards PW 1 brought defendant back to the 7-11 shop.   Defendant explained he forgot to pay and knelt on the floor to request for a chance.   PW 1 ignored him and reported to police.

2.     Later PW 2 arrived at scene.   After enquiry PW 2 arrested defendant for the offence of theft.    Under caution defendant admitted the offence and once again requested for a chance.

3.    Subsequently, defendant and PW 1 were sent to Yaumati Police Station for further proceeding.   On completion of enquiry, defendant was formally charged with the subject offence."

5. The appellant also admitted having four previous convictions, all of a similiar nature.    Mr. Wu for the appellant at the hearing pointed out that the appellant was 39 years old, single, had a mother aged 68 years old, ho had been admitted to an old age home, and that the appellant visits her everyday.   He asked for leniency pointing out that due credit should be Given for the guilty plea.   Also he pointed out that the items were not of great value.   The magistrate immediately passed the sentence of 6 months' imprisonment.

6. On 24th October 1990 the appellant appeared before the magistrate again, seeking a review of sentence.   On this occasion there were some irrelevant matters but he did state that he was very remorseful and he had a mother out over eighty who suffered from hypertension and heart disease.   He pointed out that his being imprisoned affects her health.   He also made reference to his own health.

7. This did not influence the magistrate to vary the sentence.

8. In his reasons for sentence given by the magistrate on the 2nd November 1990, it is abundantly clear that he did take into consideration the appellant's plea of guilty and also the age of the appellant's mother.   He also took into consideration the Court of Appeal decision in Appeal No. 8 of 1988, Attorney General v. CHUNG Kun-wai where the Court of Appeal was asked by the Attorney General to review the sentence of a shoplifter who had been fined $2,000, it being his fourth conviction for theft.    On his first three convictions he had been fined in each case.    The Court of Appeal supported the view that a person who keeps on stealing from shops must expect a prison term.   The fine was replaced by a prison setence of 3 months reduced by 1 month because the preceedings were by way of review.

9. The learned magistrate also referred to a decision by de 1 Basto, J. in R. V CHAN Chi-man where a convicted shoplifter who had been given a sentence of 18 months, and who had three previous convictions for theft, had his sentence reduced to 12 months.

10. The magistrate considered that the correct starting point was a setence of 6 to 9 months and that a first time offender should expect a substantial discount from this, to that of a fine.    As further offences are committed, the discount diminishes until it is expunged altogether. He said:-

"In this case I was of the view that the appellant for his fifth offence had run out of the right to leniency or discount.    I saw no reason to call for reports as Counsel suggested nor to suspend the custodial sentence I was minded to make.   Having regard to the modest value of the goods stolen and because he had not been to prison before, 1 decided to sentence the appellant at the lower end of the range 6 to 9 months.   He was caught redhanded which diminished his right to expect undue recognition for his plea and the remorse he expressed 1 regarded as hollow.

There was nothing in the mitigation put foward by Counsel prior to sentence and by the appellant at this application for review which persuaded me towards any allowance or deduction on other grounds."

11. In view of the decision of the Court of Appeal in CHUNG kun-wai (above) I considered that the sentence of 6 months' imprisonment was too severe in the present case.   In both cases the appellant pleaded guilty, the value of the stolen property was extremely low, the appellant had dependants or a dependant, in both cases the appellant had been previously convicted on at least three occasions and had been fined.

12. The Court of Appeal in its judgment said:-

"In the realm of shoplifting, the circumstances of the offence and the circumstances of the offender vary so much that it is quite impossible to suggest any general policy of approach, save that we may mention in passing, in deference to comments by counsel, that there are indeed cases in which an immediate custodial sentence is appropriate, even for first offenders.

The position is much the same with regard to a second or even subsequent offence.   But we agree with Crown Counsel that there does come a time when an offender's record becomes such that a prison sentence is inevitable."

The Court of Appeal took the view that in the circumstance of that case, the appropriate sentence was one of three months' imprisonment

13. Making allowance for the fact that in the present case the appellant had one more previous conviction and the value of the goods was slightly larger, I considered the appropriate sentence was one of four months' imprisonment and I allowed the appeal and reduced the sentence accordingly.

Representation:

Mr. Lambert LEE, (Director of Legal Aid) for Appellant

Mr. Derek PANG, Crown Counsel for Crown