Read the full judgment text of HCMA 001182/2006 on BabelCite. This High Court CFI judgment was delivered on 24 January 2007 before McMahon J.
Criminal law – sentencing – pickpocketing – persistent offender – guilty plea – totality – advanced age as mitigating factor – ill health as mitigating factor – appeal against sentence. The 73-year-old appellant pleaded guilty to two pickpocketing offences, one committed in Canton Road in June 2006 by approaching a man from behind and stealing a bag of coins from his unzipped bag, and the other committed while on bail by taking a wallet from an elderly lady's shoulder bag in a Shamshuipo market. The appellant had 24 previous theft convictions and other offences including burglary and robbery between 1949 and 2006. The magistrate adopted a starting point of 15 months per offence, enhanced it to 21 months per offence to reflect the appellant's appalling record as a persistent offender, reduced each sentence to 14 months for the guilty plea, and ordered 8 months consecutive for a total of 22 months' imprisonment. The appellant argued on appeal that insufficient weight had been given to his age and ill health (tuberculosis and possible liver disease). Whether advanced age and ill health are mitigating factors in sentencing – held, no, the magistrate was right to disregard them. Advanced age is not in principle a mitigating factor, though a court may, as an act of mercy, use it as a basis for a discount, particularly when combined with an unblemished character (R. v. Chan Tak Sang [1987] HKLR 1203; R. v. Bowdler [1975] Crim. LR 580). Ill health generally does not mitigate, as prison medical facilities are regarded as adequate, though in exceptional circumstances and as an act of mercy it may reduce a sentence (R. v. Chan Kui Sheung [1996] 3 HKC 279; R. v. Lo Chi Keung [1996] 3 HKC 155). The sentence was relatively short, the illness was treatable in prison, and given the appellant's continuing and apparently increasing propensity to commit such offences, considerations of deterrence outweighed mercy. Appeal against sentence dismissed.
Legal issues: Whether advanced age and ill health are mitigating factors in sentencing
Outcome: Appeal against sentence dismissed; 22 months' total imprisonment upheld.
Cited by 1 case