Hui Chui Man v. The Queen

HCMA001081/1987

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 1081 OF 1987

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BETWEEN

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Coram: de Basto, J.

Date of hearing: 26th & 29th February, 1988.

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J U D G M E N T

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1. The appellant, a married woman of 26, was jointly charged with another woman aged 20 of 5 counts of theft (shoplifting) from different shops on the same day. She pleaded guilty and was sentenced to 9 months' imprisonment on each count to run concurrently. She appealled against her sentence.

2. In respect of her co-accused the learned magistrate obtained a Training Centre Suitability report and Probation Officer's report and sentenced her to a fine of $1,000 on each count.

3. The appellant at the time of the offences was separated from her husband and has a very young child.

4. The learned magistrate sentenced the appellant to a concurrent sentence of 9 months' imprisonment on each count. I am unable to say that those sentences were wrong in principle or manifestly excessive.

5. The learned magistrate found that the appellant and her co-accused were acting in concert in committing all five offences and both the appellant and her co-accused have a clear record.

6. Counsel for the appellant referred to the case of The Queen and SO Hung-lee, (1986) H.K.L.R. at pages 1051 and 1052. Barker, J.A. said, at page 1052:

" We therefore restate the principles set out in the four earlier Hong Kong cases, which we see as follows.

Two situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge. In this case the sentence should be varied by this court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the role of the various accused, then the sentence should stand."

7. The learned magistrate did not apportion the blame between the appellant and her co-accused.

8. The appellant complains, inter alia, of a sense of grievance at the disparity in sentences.

9. I called for the Probation report on the appellant's co-accused. The learned magistrate did not call for a report on the appellant; The report on the co-accused showed that she left school at 16 and became first a beautician for about 7 months, then as a supporting dancer in nightclubs - that lasted about 2 years and she was then earning an average of $5,000 per month. Then she moved on to model for television commercials. In August 1985 she was employed as the principal supporting actress in a local film. Then she joined a local band as a singer and early this year worked for a modelling school for 3 months as a public relations manageress on a part time basis. This year, she posed as a model for hair and fashion designers. She never made any financial contribution to her family - indeed she was always short of money and needed financial assistance from her mother. Almost all her money was spent on expensive clothes. Investigations showed she was lazy, talkative, unattentive and told lies all the times. She maintained an evasive attitude to her five offences. The Probation Officer did not recommend probation. As I said the learned magistrate fined her a total of $5,000.

10. Before I saw the probation report of appellant's co-accused, I assumed, obviously wrongly, that the discrepancy in sentences was probably due to the fact she was a student - she was nothing of the kind.

11. I am of the view that.the sentence of 9 months on the appellant was not, of itself, wrong in principle or manifestly excessive as she committed these five offences whilst engaged on a joint unlawful enterprise with the younger co-accused.

12. However, in view of the substantial discrepancy in sentences between the two women, highlighted by the unfavourable probation report of the younger woman and the fact that the appellant has been in prison for just over 3 months, I allow the appeal, set aside the sentence and impose in substitution therefor a sentence which will enable her immediate release.

13. This decision must not be taken as a precedent - my decision was reached solely on the unusual circumstances of this case.

Representation:

Mr T. Casewell, Senior Crown Counsel for Crown.

Mr Richard WONG instructed by Messrs. Lo Wong & Tsui for appellant.