Pang Siu Tong and Others v. The Queen
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CACC000748/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 748 OF 1973 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 25th October 1973. ----------------- JUDGMENT ----------------- 1. The three Appellants were charged before the magistrate with theft and the first Appellant was further charged with going equipped for stealing. They pleaded Guilty to the charges laid against them and on each charge a sentence of three months' imprisonment was imposed, those sentences in respect of the first Appellant being concurrent. 2. The facts of the case were that these Appellants were in a motor-car and was seen in the vicinity of a private dwelling. The owner of that dwelling was suspicious and discovered that the bumper and number plate of his private motor-car parked in the garage had been removed. The Appellants were shortly afterwards stopped by the police and the missing property was found in their possession. 3. I have been told, but this was not before the learned magistrate, that the motive for this crime was that the first Appellant had borrowed the motor-car, had become involved in an accident and had damaged the car to an extent which he was not able to afford to repair. His purpose apparently was to steal the parts that were required to replace the damaged parts on the borrowed car. 4. The property, of course, was recovered and has been restored and it has been pointed out to me that a sum of $40 compensation was ordered against each of the Appellants. The basis of that computation has not been disclosed. It sounds rather a lot to screw back a bumper and a number plate. However, no objection is taken to that figure. What is submitted is that the circumstances of this case did not call for an immediate custodial sentence: indeed, it was in two instances suggested that really a custodial sentence was not appropriate at all. The learned magistrate took the view that in normal circumstances a custodial sentence would not have been called for but that owing to the prevalence of thefts from motor vehicles, including parts of vehicles, some deterrent sentence was required. It has been submitted before me that it was wrong to have regard simply to the prevalence of this offence as distinct from the increasing prevalence of an offence and I have been asked to take cognizance of a report by the Commissioner of Police indicating that between 1971/72 and 1972/73 thefts from motor vehicles decreased both generally in Hong Kong and on Hong Kong Island. I accept that, but I think the learned magistrate was not wrong in saying that the prevalence of an offence as distinct from the increasing prevalence is a material factor when determining whether a deterrent sentence is required. A deterrent sentence may be required to reduce the prevalence of an offence as well as to stop an increasing prevalence. 5. It is suggested that the learned magistrate was wrong in that he appears to have decided as a primary fact that a deterrent sentence was required before considering whether the individual circumstances of these offenders called for some other kind of treatment which, it is said, is contrary to a decision of the Full Court. I am not myself persuaded that he did fall into that error. Nevertheless, I have come to the conclusion, particularly having regard to the reason for this crime (and, as counsel for the Crown suggests, this was perhaps more a flirtation with crime rather than an embarking upon a criminal career) that the sentences in each case were unnecessarily severe. The question is: what ought to be done? Each of these young men was in employment. It has by some judges been suggested that that in itself is an aggravating circumstance in Hong Kong where so many people are out of employment. What I think is the appropriate sentence in this case is a fine in each case and I propose to impose a fine which will ensure that these young men for some months are reminded that they must respect other people's property. The first Appellant, who was in one sense the instigator of the crime in that it was he who borrowed the car although he was the youngest of the three and was earning the least, will pay a fine of $600. The second Appellant was employed at a salary of $800, of which he contributed about half to the family. He will pay a fine of $1,200. And the third Appellant, who was earning $750, all of which was to go into his own pocket, will pay a fine of $2,000. That is to say, in the case of the second two Appellants, they are paying the equivalent of three months of their income and in the case of the first Appellant, who, as I say, was to some extent the instigator, he is paying four months of his disposable income. In each case there will be an alternative of one month's imprisonment but they will be allowed to pay by monthly instalments - the first Appellant by monthly instalments of $150, the second Appellant in instalments of $400 and the third Appellant will pay by two instalments of $700 a month and one of $600. 25th October 1973. Representation: |