HKSAR v. Tsang Chung Man

HCMA 109/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 109 OF 2006

(ON APPEAL FROM KCCC 7878/2005)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 27 April 2006

Date of Judgment: 19 May 2006

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J U D G M E N T

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1.The Appellant was convicted after trial of one count of Theft.  He was sentenced to 18 months imprisonment.  He now appeals against the sentence.

2.The prosecution case was that the Appellant went to a pet shop with another man not in custody and stole two dogs, having a total value of $10,600.00, the property of the shop.  His companion (referred to as “the man in black”) stood in front of the Appellant and opened a showcase in which there were two dogs and took a poodle from the showcase.  At that point, the Appellant patted the man in black on the shoulder, pointed at another dog, and the man in black took out a Pekingese dog.  The Appellant looked at the staff member, and noted that he was busy attending to another customer inside the shop.  He patted the man in black and told him to leave quickly.

3.The other man left the shop carrying the two dogs and followed by the Appellant.  At that point, the shopkeeper was alerted; he crossed the road and shouted to stop them.  Staff managed to stop the Appellant who denied the offence.  The Appellant’s defence was that he had gone into the pet shop intending to buy dog food.  He had assumed the man in black was staff of the shop.  He said he knew nothing about the theft of the dogs.

4.The Magistrate was satisfied beyond doubt that the Appellant and the companion were acting in concert and they had gone to the shop specifically for the purpose of stealing.  He convicted the Appellant.

5.On appeal, the Appellant was represented by Miss Nisha Mohamed, who was instructed by the Hong Kong Bar Association Free Legal Service Scheme.  The perfected grounds of appeal were that the sentence of imprisonment was manifestly excessive and wrong in principle, in that:

(1)       the Magistrate erred in passing a sentence of imprisonment based on the Appellant’s previous convictions rather than on the facts of the present offence; and

(2)       he concluded that there was a tariff for offences of this type.

6.The Reasons for Sentence were very short.  The Appellant has an appalling record, 32 previous convictions, 19 of which were theft-related.  The Magistrate was sure the Appellant had gone to the pet shop intending to steal.  The two dogs were valued at $10,600.00.  The offence required pre-planning and a certain amount of organisation.  The dogs were never recovered.  Taking into account all the circumstances, the Magistrate considered a starting point of 18 months to be appropriate.

7.The basis of Miss Mohamed’s submission on Ground 1 was that the Magistrate, on hearing about his record, had concluded immediately that the Appellant was a professional thief and placed an inappropriate degree of significance on his previous convictions, failing to take into account the facts of the case.

8.It is quite clear that the Magistrate did no such thing.  He referred to the Appellant’s record as is usual and necessary before sentence.  In concluding that the Appellant was a professional thief, the Magistrate was stating no more than the obvious.  There is no indication that he placed an inappropriate degree of significance on the previous convictions.  Although counsel for the Appellant submitted this was an opportunistic offence, it is clear that there was a degree of pre-planning, as the Magistrate had found.

9.The maximum sentence of imprisonment passed on the Appellant previously for theft or pickpocketing offences was 6 months, although I noted that for a burglary offence, he had been sentenced to 8 months.  Miss Mohamed submitted that even if the Magistrate was seeking to impose a deterrent sentence, 18 months was manifestly excessive for the present offence.

10.The increase in starting points of sentences for persistent offenders was referred to in HKSAR v Lam Kwai Wa, HCMA No. 1078 of 2002 where McMahon J examined the principle enunciated in HKSAR v Chan Pui Chi (1999) 2 HKLRD 830:

“As I understand that principle it is not that an offender is being sentenced at a higher level on the basis of his prior criminal record, but that his sentence should be enhanced on the narrower basis that his prior history in repeatedly committing a certain category of offence demonstrates that the personal deterrence factor of previous sentences has been, in that offender’s case, insufficient to deter him from again committing that type of offence.  Considerations of preventing the offender from further offending in that way and the protection of the public then justify an enhancement of the sentence which would otherwise have been imposed.”

11.After reviewing various cases, where the enhancement principle had been invoked, McMahon J corrected the sentence he was considering, enhancing the starting point by 25%, rather than the 100% by which the Magistrate had enhanced it.  He stated as his reason for so doing:

“Nevertheless in my view two things must not be lost sight of.  The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.”

Chan Pui Chi dealt with an offender who had stolen a cake priced at $20 from a shop.

12.The second ground of appeal was that the Magistrate erred by sentencing as if there was a specific tariff for theft offences.  It is difficult to see how Miss Mohamed deduces this from the short Reasons for Sentence.  There is no reference to a tariff, or “usual” sentence, nor would this experienced Magistrate make the mistake of believing there was a tariff.

13.Although there is no tariff for theft offences, which must be viewed on their individual facts, there are nonetheless guidelines as to the usual range of sentence for shop theft and pickpocketing.  These would be well-known to the Magistrate.

14.This was a serious theft and the valuable property was not recovered.  It was planned and carried out as a joint enterprise. His criminal record reveals the Appellant as a persistent offender who, apparently, was undeterred by the periods he had spent in prison.  This offence was committed very shortly after the Appellant’s release from prison for his last recorded offence in 2005.

15.The Magistrate was thus able to justify a higher starting point for sentence on the basis of the principle in Chan Pui Chi i.e. the Appellant’s repeated thefts demonstrated that the personal deterrent factor of previous sentences had been insufficient to deter him from committing this type of offence.

16.The Magistrate did specify what starting point he was adopting but did not explain further why 18 months, a term significantly higher than previous sentences, was appropriate.  I agree with Miss Mohamed’s submission that this substantial enhancement appears excessive in terms of the actual offence.

17.Given the circumstances of the case, I consider that justice will be served by a sentence of 12 months that being proportional to the offence and a reasonable degree of enhancement.

18.Accordingly, the appeal is allowed, the sentence of 18 months imprisonment is set aside, and one of 12 months imprisonment is substituted.

Miss Winnie Lam, GC of Department of Justice, for the Respondent

Miss Nisha Mohamed, instructed by Hong Kong Bar Association’s Free Legal Service Scheme, for the Appellant