The Queen v. Cheung Keung

HCMA000795/1989

----------

BETWEEN

----------

Coram: Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing, 17 August 1989

Date of delivery of judgment: 17 August 1989

----------------------

J U D G M E N T

----------------------

1. This is an appeal against sentence on a charge of shoplifting, appeal against conviction having been abandoned with leave. The offence was committed on the 5th of May 1989.

2. The offence consisted of taking from Watson's department store in Shatin two Philishave electric shavers and a bottle of cleansing material to a total value of $951. The fact that there were two shavers shows clearly that it was a professional shoplifting operation in that these items were taken to be sold with profit. It was also clear that some care had been taken by the Appellant in preparing for this expedition and it was not done on the spur of the moment.

3. The Appellant had been sentenced sometime before in June 1988 to a six months' suspended sentence for a similar offence which the magistrate having examined the file described as equally blatant offence.

4. The magistrate imposed a sentence of nine months' imprisonment for this offence and activated the previous suspended sentence of six months, to be consecutive, making a total of fifteen months' imprisonment. It is clear that the magistrate was quite right in activating the suspended sentence and that it should have been, made consecutive. This was the Appellant's third conviction for theft and was a clear case of shoplifting of valuable items for gain. I am satisfied on the authorities which I have been referred to, in particular, that of R. v. CHU Kwok hung, that the sentence of nine months' imprisonment for this offence was not excessive. I was also referred to a Court of Appeal decision in Application for Review no. 8 of 1988, Attorney General v. CHUNG Kun Wai, where a sentence of three months' imprisonment was considered proper for an offence of shoplifting. However there the value of the goods was only $21 and there was no evidence of it being a pre-meditated offence. The only question therefore is one of totality - whether the total sentence of fifteen months for the two offences is either wrong in principle or excessive.

5. I am satisfied that the Appellant must have been well aware, having been sentenced to six months' imprisonment previously, albeit suspended, that another similar offence would attract an even higher sentence. I have no doubt that the effect of the suspended sentence was fully explained to him when it was passed.

6. I have also considered the matters raised by Mr. Midgley for the Appellant that he comes from a simple background in North China and that his wife is due to join him in Hong Kong in October. That may be so but the Appellant is holding down a quite responsible job in the electronics industry and I am satisfied he must have been well aware of the consequences of detection for this offence and indeed that is shown by the fact that he apparently tried to run away when he was detected.

7. I am satisfied that the sentences are clearly not wrong in principle and having considered all these factors I cannot say that they are excessive. Shoplifting is a common offence and no doubt the cost of it is paid by all legitimate purchasers of goods. Here the value of the goods was high. It was pre-meditated and the offender has previous similar convictions.

8. The appeal against sentence is dismissed.

Representation:

Mr. J.N. Midgley of M/S Haldane, Midgley & Booth for Appellant

A.K. Maxwell for Crown