Ho Kau v. The Queen

CACC000524/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 524 of 1978

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Coram: Addison, J.

Date of Judgment: 15th June, 1978 at 10.20 a.m.

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JUDGMENT

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1. The appellant in this case pleaded guilty to no fewer than sixteen charges of theft and asked the learned magistrate to take into account seventy-two similar offences. It is quite clear that in the view of the learned magistrate, this appellant deserved the maximum punishment that he could impose, which was 3 years' imprisonment, He therefore passed consecutive sentences of one month's imprisonment on fifteen of the charges and then by the simple method of deduction allocated the balance of 21 months' imprisonment to the first charge.

2. It is not necessary to say much about the facts of this case. The appellant was employed by the complainant company for a period of seven years and in the six months before March, 1978, he decided to embark on a furious course of stealing. The value of the property stolen by him amount to approximately $55,400.

3. He is a single man, aged 45 years and has a clear record. The report shows that the reason for his downfall is attributable to his addiction to gambling. His living accommodation was visited by the probation officer and it is quite clear that the money which he took, he has not kept.

4. The magistrate took the view that a deterrent sentence was called for. In my opinion the magistrate has, with respect, erred in principle in the sentence that he has imposed on that he has not taken into account the fact that the appellant pleaded guilty and, secondly, he has imposed a deterrent sentence on a first offender.

5. The principle that a deterrent sentence ought not to be imposed on a first offender was enunciated in the case of R. v. CURRAN⁽¹⁾. There Mr. Justice Mac Kenna said this:

"As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence."

6. This principle has been adopted by the Court of Appeal in Hong Kong both in the case of R. v. LEUNG SUM⁽²⁾ and in R. v. GARTHWAITE⁽³⁾. In the case of GARTHWAITE, the learned Chief Justice had this to say:

"Finally, it is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appellant did."

The appellant in the latter case pleaded guilty to various offences of forgery, uttering a forged document and obtaining goods on the forged document to the extent of about $14,000 and had his sentence reduced from three years' imprisonment to one of two years' imprisonment.

7. It therefore seems to me that there is a valid ground of complaint; and I feel that the appeal should be allowed to the extent that the sentence will be reduced to one of eighteen months' imprisonment.

Representation:

(1) Cr. App. Reports 57/73, p.947

(2) Cr. App. 410/77

(3) Cr. App. 566/77