HKSAR v. Zhou, Dingshu

HCMA000096/2004

HCMA96/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.96 OF 2004

(ON APPEAL FROM NKCC9014 OF 2003)

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Coram: Hon Gall J in Court

Date of Hearing: 11 March 2004

Date of Judgment: 11 March 2004

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J U D G M E N T

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1.The appellant was convicted on 26 December 2003 by Magistrate Peter White of one charge of theft and was sentenced to 12 months' imprisonment.

2.The facts agreed at plea by the appellant were that in the afternoon of 24 December 2003, a lady had purchased a digital camera at a shop in Times Square. It was put into a shopping bag of the company from which it was purchased.

3.At about 5.20 p.m. on the same day, she entered another shop and put the bag containing the camera on a showcase and turned to select some clothes. She heard a sound, turned back and found the bag together with the camera was missing. The value of the camera was $3,990. She saw the appellant walking away with the bag. She saw that he had placed it inside a black paper shopping bag. She grasped the appellant and yelled for help. A security guard came and the camera and its bag were recovered from the bag carried by the appellant. That was reported to the police.

4.The appellant has one previous conviction in 2001 for theft. He is not a resident of Hong Kong but a visitor from the Mainland.

5.The magistrate in considering the sentence to be passed said this :

" This was a high value item and the circumstances of the theft allowed the defendant to understand that the item has been recently purchased, (in new condition) from Fortress.

Theft is of course a serious prevalent offence. It is also relevant that it was committed at a high profile shopping mall which frequently attracts local and overseas shoppers who are shopping for items of substantial value."

6.The appellant in his mitigation had said that the taking was triggered by a moment of greediness when he saw the camera in question and stole it.

7.The magistrate clearly did not view that statement as being accurate inasmuch as the bag containing the new camera had, immediately upon the taking, been concealed in a black bag which the appellant then sought to take from the shop.

8.The magistrate was entitled to take into account that this type of theft is a prevalent offence, and to take into account that the place where the theft took place was a place where a potential thief would be likely to find goods of high value to take and persons in possession of those goods.

9.The appeal was brought on the ground that the starting point was manifestly excessive and that the discount, being an appropriate one left a totality which was manifestly excessive in the circumstances.

10.I am referred to three cases by Mr Cheung for the appellant. The first one, a case decided in 1990, R v. Vy Van Kien and Pham Van Hoa, HCMA No.1162 and 1179 of 1990, in which Penlington JA (as he then was) held that previous convictions were not an aggravating factors justifying an increase in sentence and that a starting point of 12 to 15 months' imprisonment after trial for pickpocketing offences was correct.

11.The second case was HKSAR v. Rang Zhi Tai & Lai Mau Sum, HCMA No.7 of 1999, where Deputy Judge McMahon (as he then was) held that where four men in concert acted to steal the purse of a Japanese tourist from a table at a restaurant in Central, the appropriate starting point was 18 months' imprisonment after trial. The only matter to distinguish that case from this is that there were a number of people acting in concert.

12.The third case, R. v. Vargas and another, HCMA No.1222 of 1995, is not presented in a form which is of any assistance to me.

13.The tariff suggested by Penlington JA in Vy Van Kien of 12 to 15 months was suggested in 1990 and I make no comment as to whether that is an appropriate tariff for today.

14.This was not a pickpocketing. This was the taking of a substantial item from a counter in a shop. Even were 12 to 15 months an appropriate tariff for this type of offence, the court is not bound to adhere strictly to that particular tariff.

15.I cannot say that the sentence imposed by the magistrate is manifestly excessive and that in all the circumstances of this case he has fallen into error.

16.The appeal against sentence is dismissed.

Representation:

Miss Lily Wong, SGC of the Department of Justice, for the Respondent

Mr Adonis Cheung Kam Wing, instructed by Messrs Peter K.H. Wong & Co., for the Appellant