The Queen v. Kwan Siu-ying

HCMA000327/1984

BETWEEN

Coram: Hon. McMullin, V.-P. (Sitting as an additional Judge of the High Court) in Court.

Date: 27th June, 1984

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JUDGMENT

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McMullin, V.-P. :

1. The appellant, a woman of 55 years of age, was convicted in the Magistrates' Court of a single offence of pickpocketing. The occasion of the offence was in February, 1984 when she entered the Che Kung Temple, Shatin in which there were already present a number of worshippers. Among them was the first prosecution witness. He was carrying a sum of $3,900 in his left trouser pocket. He felt a hand being inserted into this pocket. He seized the hand and discovered that the person who was endeavouring to steal from him was the appellant. She was arrested and charged with the present offence.

2. Originally, there was an application for leave to appeal against conviction. That has been abandoned on her behalf by Counsel Mr. CHENG Huan who appears before the Court this morning. A sentence of 18 months was imposed.

3. The Magistrate had regard to the record of the appellant which included four previous offences of theft. These are however widely separated from each other by gaps in time. The first, a similar offence, larceny from the person, occurred as long ago as 1955. The sentence was 6 months. Two years later she was convicted of receiving a stolen property and again was given 6 months.

4. Some eight years later she was again before the Court. She was convicted of theft and went to prison for 18 months.

5. It was some 18 years later that she was again before the Court. The offence charged was theft but it must have been a very minor theft. She was fined $250. She appears to have been out of trouble again thereafter for another 3 years. In 1978 she came before the Court again on charges of theft and giving false information to the police. For those offences she received sentences of 3 months and 1 month to run concurrently.

6. She has had an unfortunate family history having conhabited with a man - by whom she had four children - from whom she parted some 20 years ago, the children being consigned to the care of her common law husband.

7. She has worked as a casual worker, a dish-washer, in restaurants which work brings in a sum of between $1,000 and $1,500 per month. She resides with her elderly mother who relies upon her support. The fact of her mother relying upon her support was made known to the Magistrate who took it into account. But it does not appear that the nature of her family's circumstances was as fully exposed before the lower court as it has been before this Court.

8. Mr. CHING Huan appeals against the sentence on two grounds. Firstly, he says that the sentence is in itself excessive. He referred me to the decision of Mr. Justice of Appeal YANG in CHAN Ki-sai. In that case, a man was charged with theft and received a sentence of three months' imprisonment. He was convicted of pickpocketing at the races. He had one previous conviction for pickpocketing. He was given a sentence of six months' imprisonment suspended for twelve months. At the time when he was before the appellate court he was serving, concurrently, a sentence of three years for a burglary unconnected with the offence which the court was then dealing with.

9. The learned Judge of Appeal adverted to the fact that sentences in the Magistrates' Courts for pickpocketing range from three to twelve months. Mr. Macpherson who appears for the Crown this morning did not differ from that opinion. Mr. Justice Yang went on to say that this kind of offence was as prevalent in the days when he himself had been sitting upon such cases as a Magistrate in the early fifties and sixties as they are now, and he added:

"I see no reason why different considerations and a different tariff should apply. Nine months still seems to me to be the correct norm."

10. The Magistrate in the present case took the view that it was necessary to impose "condign punishment", and he made it clear that he had consulted the decision of Mr. Justice Yang to which I have just now referred. I see no reason to suppose that the tariff is otherwise than it was stated by Mr. Justice Yang in CHAN Ki-sai and having regard to the nature of the record as I have described it, I cannot take the view that the present case was one which called for condign punishment.

11. I think the sentence of 18 months was in all the circumstances excessive. The appeal is allowed and a sentence of twelve months' imprisonment is substituted for the eighteen months imposed - the occasion and place of the offence being taken into account.

Representation:

Mr. CHENG Huan (John Ip & Co.) for appellant.

Mr. N.T. Macpherson for Respondent/Crown.