The Secretary for Justice v. Ng Po Ping (R4)
Read the full judgment text of CAAR 5/2001 on BabelCite. This Court of Appeal judgment was delivered on 30 July 2001.
1. The five applications for review of sentence presently before us have been consolidated because the same point arises in each of them. The Respondent in each case, having pleaded guilty to theft by shoplifting before Mr P.C. White, Acting Principal Magistrate at Western Magistrates' Court, received an absolute discharge. The reasons provided by the magistrate for taking this course of action led to a consolidated application on 15 February 2001 when the prosecution invited the magistrate to r
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CAAR000005/2001 CAAR 2/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NOS. 2, 3, 4, 5 & 6 OF 2001 (ON APPEAL FROM WSCC 423 of 2001, WSCC 425 of 2001, ______________ CAAR 2/2001
______________ Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Wong JA Date of Hearing: 26 July 2001 Date of Judgment: 30 July 2001 _______________ J U D G M E N T _______________ Stuart-Moore Ag CJHC (giving the judgment of the Court): Introduction 1.The five applications for review of sentence presently before us have been consolidated because the same point arises in each of them. The Respondent in each case, having pleaded guilty to theft by shoplifting before Mr P.C. White, Acting Principal Magistrate at Western Magistrates' Court, received an absolute discharge. The reasons provided by the magistrate for taking this course of action led to a consolidated application on 15 February 2001 when the prosecution invited the magistrate to review the sentences he had imposed, pursuant to section 104 of the Magistrates Ordinance, Cap. 227. When this failed, the leave of this court was sought, and on 6 March 2001 was granted, for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221. 2.We propose briefly to summarise the facts of each case and the magistrate's sentencing remarks. 1st Respondent's case 3.On 9 January 2001, Tse Sheung-kai (R1), who was unemployed, aged 41, and had previous good character, pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. 4.On 7 January 2001, R1 went to a branch of Wellcome Supermarket, and stole a bottle of shampoo, valued at $35.90, by hiding it beneath his overcoat. He had HK$232.60 with him at the time of arrest and he had paid for two low value food items. 5.After R1's plea had been entered, the magistrate asked the prosecutor why a bind over had not been offered saying that if there was to be a policy in regard to binding over defendants who stole items of little value, that policy should be applied consistently. He was informed by the prosecutor that there was no such policy, and that each case was decided on its own facts. However, the magistrate said that he expected the prosecution to follow a consistent course in the courts of Hong Kong by offering a bind over. It was his view that it was not appropriate for the prosecution to wait for the court "to say something or wait for the duty lawyer to say something, but to offer a bind over to expedite the way in which these cases are dealt with." 6.The magistrate then adjourned until 2.15 p.m. for the prosecutor to take instructions. As it happened, she was unable to do so, and the magistrate then adjourned the matter to 23 January 2001. When the court reconvened, the magistrate was reminded by the prosecutor about the terms of section 19 of the Magistrates Ordinance, Cap. 227, which governs the proceedings at court after a defendant has admitted the truth of the complaint or information. The magistrate responded "I'll do as I consider appropriate." He then adjourned the case, together with other similar cases, for hearing on 30 January 2001. 7.On 30 January 2001, the magistrate was told that R1's case had been reconsidered and the option of offering no evidence if R1 agreed to be bound over had been rejected as inappropriate. He was advised by counsel that the fact that R1 had a clear record had been taken into account when the decision to prosecute was initially taken, and that "in all normal circumstances when (an) offence is committed we will initiate prosecution, and it is only where there are strong reasons not to do so that we will consider other options, if such request was made by defence." 8.The magistrate referred to the case of another defendant, called Poon Kai-tik, where a bind over arrangement had been entered into (after the prosecution had offered no evidence) because of that defendant's psychiatric condition. 9.The magistrate then expressed the view that "starting a criminal record in regard to minor cases is not in the public interest because it doesn't assist the rehabilitation of those offenders". He was concerned that no system existed which permitted magistrates to deal with such cases without the imposition of a criminal record. Prosecuting counsel replied that, apart from the interests of R1, the interests of the public had also to be considered, that mature adults knew the consequences of breaching the law, and that shop thefts in supermarkets were prevalent. Mr White countered by saying that he favoured the practice in other jurisdictions of giving "adult cautions", adding that the penalty R1 would receive was a criminal record for the offence of theft. 10.Eventually, when Mr White sentenced R1, he observed:
11.R1 had to appear before Mr White once more when the prosecution tried to persuade him to review the sentence on 15 February 2001. We shall deal later with those proceedings. 2nd Respondent's case 12.Ho Yui-sing (R2) also appeared before the magistrate on 9 January 2001, and pleaded guilty also to a charge of theft by shoplifting. He was 18 years old, unemployed at the time of the offence and of previous good character. 13.The facts revealed that on 3 January 2001, R2 went to Watson's the Chemist, and stole a bottle of hair colour, valued at $102.90, by putting it in his trouser pocket and leaving the shop without paying for it. 14.R2, like R1 before him, was then required to return during the afternoon when proceedings were adjourned, at Mr White's instigation, for instructions to be taken in relation to a bind over. He was then, for the same reasons as R1, made to return to court on 30 January 2001. 15.When the magistrate sentenced R2, he observed:
16.R2, in common with all the other Respondents in this case, then had to attend court again for the consolidated review of sentence proceedings on 15 February 2001. 3rd Respondent's case 17.On 11 January 2001, Wong Ngong-shan (R3), aged 46, a housewife of previous good character, pleaded guilty to a single charge of theft. 18.The facts of the case showed that on 8 January 2001, R3 went into Park'N Shop where she stole a bottle of shampoo and a bottle of cream cleanser, valued at HK$91.80, by putting them into a white plastic bag. She then left the supermarket without paying for them. R3 had HK$546.60 with her at the time of arrest. 19.When the magistrate said that he was going to adjourn the case to 30 January 2001 while the prosecution, at his request, considered whether to offer her a bind over, R3 replied that she had been "greedy" and would not do it again. 20.On 30 January 2001, when Mr White sentenced R3 after the prosecution had indicated that they were proceeding with the prosecution, he observed:
21.R3 attended court yet again, on 15 February 2001, to hear Mr White refuse to make any upward revision of her sentence. 4th Respondent's case 22.On 15 January 2001, Ng Po-ping (R4), aged 32, a housewife of previous good character, pleaded guilty to one charge of theft. 23.On 8 January 2001, R4 went into Watson's the Chemist, and stole a pack of henna cream, valued at HK$74.90, by putting it in a plastic bag and leaving the shop without paying for it. She eventually admitted to the arresting officer that she had stolen out of greed although to begin with she had tried to make out that she had paid. 24.Once again, Mr White adjourned sentence on 15 January 2001 to 30 January 2001 for the prosecution to take instructions about proceeding under the bind over procedure saying, in terms which defence counsel to his credit did not seek to adopt, that R4 must have been "acting in a situation of some stress" when she had originally tried to avoid responsibility for the theft. 25.On 30 January 2001, when the matter returned to court, the prosecution effectively said that no question of a bind over arose. Mr White then sentenced R4, observing:
26.R4 then had to attend the review of sentence proceedings on 15 February 2001. 5th Respondent's case 27.On 5 February 2001, Cheung Mar-luk (R5), aged 59, unemployed at the time of the offence and with a previously clear record, admitted a single charge of theft. 28.The facts of the case revealed that on 20 January 2001, R5 went to the Wellcome Supermarket where he stole two packs of "Schick" refill razor-blades, valued at $84.40, by putting them in his pocket as he left the supermarket. R5, who had HK$663.60 with him at the time of arrest, admitted that he committed the offence out of greed. 29.Before passing sentence, the magistrate remarked that he would have approved the bind over procedure if it had been offered by the prosecution. Mr White then speculated that the money being carried by R5 at the time of the offence was because "it may be that he had to pay rent that afternoon or he and his wife and three young children would have been thrown out of their accommodation ...." Again, in this case, defence counsel found himself distancing himself from the scenario being painted by the magistrate. 30.R5 then specifically declined the magistrate's invitation to have the proceedings adjourned in order to give the prosecution an opportunity to take further instructions in view of R5's good character. 31.When R5 was sentenced on 5 February 2001, the magistrate said:
32.R5 had to return to court on 15 February 2001 for the review proceedings. Consolidated review of sentence on 15 February 2001 33.In the light of these circumstances, which had revealed a highly unorthodox approach to sentence in cases of this kind, it is hardly surprising that the magistrate was asked by the prosecution to review the sentences he had imposed. These were by no means the only cases in which Mr White had imposed absolute discharges on the shoplifting offenders coming before him. However, these were the five cases selected for review. 34.The magistrate declined to review any of the sentences he had imposed. During these proceedings some of the facts of each theft case were examined again. Reference was again made to Poon Kai-tik's case. Statistics concerning shoplifting cases were helpfully provided to the magistrate. He was told that in the year 2000, 6,973 cases of shop theft were detected and 3,357 such cases came before the courts for sentence. Out of those 3,357 cases, only 46 absolute discharges had been given of which 35 were imposed by Mr White himself. 35.The prosecution argued that shop theft was a huge burden, in terms of the security arrangements which had to be installed as well as in terms of the losses suffered. Mr White was told that one well known supermarket chain alone was losing over $1 million worth of goods a month, the cost of which had to be passed onto consumers. 36.The magistrate was reminded that legislation viewed theft very seriously having regard to the sentences which are laid down. 37.The magistrate accepted that shop theft was a costly nuisance for retailers but he took the view that there were degrees of seriousness and that the cases of the five Respondents involved "very, very small sums". As such, he considered the emphasis had to be placed upon rehabilitation. 38.The magistrate also expressed the opinion that usually deterrence was not a "fundamental consideration" where offenders with a clear record had committed an offence in regard to an item of little value out of "momentary impulse" and he said that while general deterrence was important in most cases of shop theft, it was not a factor in the sentencing of the five Respondents. 39.When the magistrate gave his decision on the review, he said:
40.He went on to say that he agreed with the abolition, fifteen years previously of the ability of magistrates not to record convictions, as this procedure had been abused by the time the Rehabilitation of Offenders Ordinance was introduced in 1986. More importantly, the magistrate added that he had passed these sentences in order to reflect his concern at the inconsistent approach by the prosecution in cases of shop theft. The prosecution then sought to persuade the magistrate that a blanket approach to sentencing was wrong in principle and should be reconsidered. He was invited to bear in mind that shoplifting was a nuisance that shops have to deal with day in and day out. The magistrate concluded by saying that:
Supplementary reasons for sentence 41.After an application had been made to the magistrate for the case papers, for the purpose of a review of sentence to the Court of Appeal, the magistrate provided additional reasons for sentence. He indicated, amongst other things, that he considered each Respondent had acted on momentary impulse, and stolen items of relatively small value. These were, he said, offences "at the bottom end level of criminality". He added that even if the Respondents had been treated consistently, he would still have sentenced as he did, except perhaps in respect of R2 where the value of the stolen item came to over $100 and was such that he might have imposed a conditional discharge. In the magistrate's opinion, the very fact of conviction was, in any event, a suitable punishment. 42.Amongst the reasons he provided in his undated seven-page document, Mr White said that:
43.It is difficult to see why not looking "to see who was watching" or leaving the store immediately can make any difference to the appropriate sentence for shoplifting and the comment that none of the Respondents had acted "deceptively" is in error. It seems that in the cases of R3, R4 and R5 it was only the anti-theft alarms at the exits to the respective shops where the thefts occurred which alerted the security staff to the offences. There was, in their cases, no question of their activities being watched beforehand as none of them was suspected of shoplifting until the alarms went off. 44.In any event, the magistrate had placed, in the context of this type of crime, an artificial emphasis on grades of deception. Almost every act of shoplifting involves a deliberate deception. R1, who was mature in years and was carrying more than enough money to pay for the item he had hidden under his coat, had created the pretence of honest conduct by paying for two low-value items. In the case of R2, a bottle was hidden in his trousers. R5 also hid the item he had stolen in a pocket. R3 took a white bag into the store and the shampoo which was taken dishonestly off the shelf was deliberately placed inside that bag no doubt in order to deceive any staff who might have been observing her into believing that she had left the shop with the same belongings she had been carrying when she entered it. A similar scenario applied also to R4. Whilst we do not for a moment say that the individual circumstances of offence and offender should not be taken into account, we do say that the magistrate erred in the type of distinctions and the rationale he used to justify his approach. 45.The magistrate had also referred to the relatively high value of the property stolen by R2, but we are not able to see that this aspect had any real significance in any of the cases. In any event, the property taken by R3 was of very similar value to the property stolen by R2 and she was carrying over $500 on her. R5 had over $660 on him and the value of the goods he stole was over $80. The Application 46.It was submitted by Mr Grenville Cross, SC, on behalf of the Secretary for Justice (the Applicant), that the imposition of an absolute discharge in the circumstances of each of the cases now before us was not only manifestly inadequate as a sentence but was also wrong in principle. 47.It was pointed out that initially the magistrate had indicated that he was making use of the procedure to discharge these offenders absolutely as a way of reflecting his concern over what he perceived to be an inconsistency of approach by the prosecution towards shoplifters. However, ultimately he appeared to have changed his stance in respect of all the Respondents, (with the possible exception of R2 to whom he said he might have given a conditional discharge), by stating that it was his belief that the culpability of first offenders who committed shop thefts was minimal at most and that such offences were "at the bottom end level of criminality". It was in these circumstances that he deployed a disposal which indicated that no punishment was appropriate. Such a situation would, in proper circumstances, be covered by section 36 of the Magistrates Ordinance which provides:
48.Mr Cross submitted that the magistrate's approach to sentence in the present case showed consistency only with the approach frequently adopted by Mr White himself. There was also, he suggested, no general policy of treating first-time shoplifting offences as being so trivial that they called for no sentence at all. On the contrary, as Mr Cross was able to demonstrate from the statistics which had been put before Mr White, of the 3,357 cases which came before the courts in the year 2000, 52.1% had attracted fines. In the next largest groups, leaving aside a miscellaneous group of 11.2% which included orders for drug addiction treatment centre, community service, detention centre, conditional discharge and others, 14.6% had attracted immediate prison sentences, 8.7% had received probation orders and 5% were given suspended prison sentences. The 46 absolute discharges given in 2000 amounted to 1.4% of the total sentences imposed for shoplifting out of which 35, or 76%, were imposed by Mr White himself. Threefold criticism of the magistrate's approach 49.We have been left in no doubt that the magistrate's approach to these cases was wrong in principle and that the sentences he imposed were manifestly inadequate. 50.There are three reasons why the magistrate seems to us to have fallen into error. 51.Firstly, we observe that he displayed some degree of confusion in his disposal of these cases. At the sentencing stage, he expressed "concern" that there should be a system which allowed the court to order that no criminal conviction should be recorded. This had been the position before 1986 when the Rehabilitation of Offenders Ordinance, Cap. 297, came into existence. However, by the time this case had reached the review stage on 15 February 2001, Mr White was saying:-
52.It was not for the magistrate to dictate policy to the prosecution or to attempt, as unfortunately occurred in most of these cases, to pressurise the prosecutor into offering no evidence and into the acceptance of orders binding over the offenders. Of course, there may, in extremely rare circumstances such as where the offender appears to have been suffering from some mental condition, be shop theft cases where an order binding over the defendant to be of good behaviour appears to be an appropriate course for the prosecution to adopt. This will be a matter to be decided by the prosecution although, if a magistrate has good reason to believe that a material aspect of the case has been overlooked, he would be perfectly justified in making an enquiry to ensure that it has been taken into account. 53.Equally, it was not for the magistrate to adopt a sentencing policy to mitigate the absence of legislation which he felt ought to be in place. Evidently, he lamented the fact that a system to deal with certain cases without the necessity of imposing a criminal record was not in place. He appears to have decided in these cases to adopt a uniform policy which carried with it no punishment. Matters of this kind are, however, for the legislature and it is not for the courts to undermine legislative policy by devices of the kind employed by the magistrate. 54.Secondly, the magistrate appears to have been side-tracked or confused by considerations about the consistency of the prosecution to accept bind over orders for shoplifting which he expressed on 15 February 2001 in the following way:
55.However, this approach was fundamentally flawed as the statistics to which we have referred only too clearly reveal. Theft by shoplifting is an offence which will generally call for a sentence which has regard to the circumstances of the offence and of the offender. Usually, no doubt, a first offender will receive a financial penalty although, where organised and professional shoplifting is concerned, a custodial sentence might well be appropriate. 56.Shoplifting offences in the view of this court are generally not suitable for disposal under the bind over procedure. Similarly, an absolute discharge will only extremely rarely be appropriate. To steal from shops is an act of comparative simplicity and has to be deterred. 57.The deterrence we have in mind is not merely in regard to the offender in question but to others who may be inclined to steal in the same way. An absolute discharge acts as no deterrent to the offender and equally as no deterrent to other like-minded members of the public. 58.The magistrate was fully entitled to pay regard to the personal situation of each Respondent. However, instead of seeking to achieve a balance between the various well known sentencing factors consisting of retribution, deterrence, prevention and rehabilitation, he appears to have lost sight of the interests of the victims and the public and instead to have focused exclusively on the interests of the Respondents. 59.Leaving aside whether these Respondents would have felt any grievance if they had not been given an absolute discharge, assuming them ever to have been aware of the magistrate's general policy of granting absolute discharges to others in a similar position to themselves, the potential grievance was actually being created by Mr White by adopting a general policy of his own which was contrary to the proper sentencing policy being applied in most, if not all other, magistrates' courts. In reality, the grievance would most likely have been felt by a few offenders who had been properly dealt with in other courts but were left wondering from media reports if they would have been better off had they come in front of Mr White. 60.Thirdly, the magistrate erred in treating the conviction itself as a ground for not imposing an actual sentence. It hardly needs to be said that it is duty of the court to pass an appropriate sentence for offences which have either been admitted or proved. We feel bound to say that the magistrate's approach in this respect was wholly inappropriate. The duty of the magistrate was clear and, adopting the observations of this court in R v Chan Wun-sang and Anor. [1993] 1 HKCLR 46 at 50:
61.The stance adopted by the magistrate in the present case was not unlike that taken by a magistrate in Attorney General v Chan Wai-lan and Ors. [1982] HKLR 68 where 37 defendants (amongst whom the five respondents were randomly selected for review) who had pleaded guilty to the offence of failing to produce proof of identity for inspection all received absolute discharges. In giving judgment, Roberts CJ said:
Later, Roberts CJ went on to say:
62.The judgment concluded in terms which were appropriate for the offence in that case which, unlike the applications presently before us, involved little moral blame:
63.The court in that case then allowed the application for review and found that the sentences imposed were both wrong in principle and manifestly inadequate. When absolute discharge is appropriate 64.Although an absolute discharge will seldom be appropriate for a properly brought charge in the criminal courts, the usual circumstances when it tends to be used arise from the moral blamelessness of the offender (such as sometimes happens in strict liability offences), or the extreme triviality of the offence in which case, it probably ought never to have been prosecuted in the first place. 65.There are two cases worth citing by way of example. Smedley's Ltd v Breed [1974] AC 839, was concerned with a prosecution for an offence under the Food and Drugs Act, 1955, where the appellant's human error in allowing a caterpillar to enter a can of tinned peas was estimated at 3,499,999 to 1 against this happening again. This was a case in which the appellant company had used all reasonable care and the presence of the caterpillar was said to have occurred not in consequence of the appellant's procedures but in spite of them. There was, in stark contrast to shoplifting cases, no moral culpability at all. 66.Although the lay magistrates had imposed a ￡25 fine, Lord Dilhorne at 857 said:
67.Here, too, there is a contrast with the applications presently before us, as it can hardly be said that the prosecution of these shoplifting offences did nothing to serve the general interest of the public. On the contrary, the public interest requires that offences of this kind, which are after all offences of dishonesty, should be prosecuted and punished. This is not to say that there is no room for an understanding or compassionate approach where unusual circumstances warrant a departure from the normal sentencing practice. 68.The second example by which we propose to illustrate the appropriateness of an absolute discharge is R v King [1977] Crim LR 627. The very short report reveals a highly unusual situation. K was convicted of possessing a controlled drug which he had first taken into his possession in 1972. He ceased using it after 1973 and put what remained into a matchbox and forgot about it. In 1976, he was found in possession of the drug when his premises were searched in connection with the possession of drugs by others. Before May 1975, it had not been an offence to be in possession of the drug. K, who had no previous convictions, was sentenced to nine months' imprisonment and ordered to pay ￡50 costs. The decision of the Court of Appeal is summarised in these terms:
69.These two cases serve to illustrate that the circumstances need to be wholly out of the ordinary before an absolute discharge should be considered. 70.None of the cases we are now considering were out of the ordinary in any sense whatever. More to the point, they were very typical cases of shop theft which the courts are generally at least under a duty to attempt to deter. There were no circumstances special to the offenders or the offences which justified the imposition of absolute discharges. There can be no question that the policy of the legislature would be significantly weakened if every first offender was led to believe that he had only to steal items of small value in order to secure either a bind over or an absolute discharge. Applicant's approach to review 71.Mr Cross has most responsibly indicated that although we were being invited to hold that these sentences were unduly lenient, he was not seeking any enhancement of the sentences. Plainly, this application was being made in a sample number of cases to cure the potential injustice being created by the inconsistent approach of a single magistrate who was, as it were, marching out of step with the well accepted sentencing principles being adopted by other magistrates in shoplifting cases. It is the fact that these five cases, as opposed to the numerous other similar cases where the magistrate had imposed absolute discharges, have been selected at random for review and it would be wrong, for this reason if no other, to enhance the sentences. However, there is another reason also. R1 and R2 have now, despite their early pleas and general cooperation, had to attend court, through no fault of their own, on no less than six separate occasions. R3 and R4 have had to attend court on five occasions and R5 on four. Conclusion 72.We shall allow the applications. We are satisfied that the sentences imposed in each case were wrong in principle and manifestly inadequate. However, for the reasons we have also given as to the way these particular offenders have been treated as the result of the magistrate's misconceived sentencing policy in regard to first-time shoplifters generally, we are in no doubt that each of the Respondents has learnt a lesson that will not be forgotten. Accordingly, in line with the procedure adopted in Attorney General v Chan Tak-king and Anor. [1989] 2 HKLR 428, we do not propose to increase the sentences imposed on them.
Representation: Mr I Grenville Cross, SC, DPP, Mr P.S. Chapman, SADPP and Ms Denise F.S. Chan, SGC, of the Department of Justice, for the Applicant. Mr William N.C. Stirling, instructed by the Legal Aid Department, for the Respondents (re: CAAR 3, 4, 5 & 6/2001) Tse Sheung Kai in person (absent) (re: CAAR 2/2001) |
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