HKSAR v. Choi Siu Yi

HCMA 894/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 894 OF 2011

(ON APPEAL FROM ESCC 4930/2011)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 31 January 2012

Date of Judgment: 31 January 2012

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J U D G M E N T

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1.The appellant pleaded guilty in the Magistrates’ Court to 1 charge of theft and was sentenced to 12 months’ imprisonment.

2.The facts admitted in the lower Court were that, on the afternoon of 6 December 2011, a plainclothes officer, who was on duty, saw the appellant at a street stall in Wanchai.  She was holding some wrapped underwear which she used to cover her action in taking out a mobile phone from the pocket of one of the customers.  She was immediately intercepted by the police.

3.In mitigation, the duty lawyer representing the defendant submitted that the appellant has a five‑year‑old son and asked for social welfare assistance to look after her son if she is in prison.  The learned Magistrate granted that request but was subsequently informed by the duty lawyer that there was no such need.

4.The learned Magistrate considered the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 where the Court of Appeal had confirmed that the sentence for pickpocketing after trial is 12‑15 months imprisonment for a first offender where there are no aggravating features.

5.In this case, the learned Magistrate found that the accused was a persistent offender.  She has seven previous convictions, six of them were related to offences of dishonesty.  Another aggravating feature was that the offence was committed on a busy street in Wanchai at lunchtime outside a street stall where the public is at particular risk.

6.So having considered all this, the learned Magistrate adopted a starting point of 18 months’ imprisonment and giving the full 1/3 discount to the appellant, sentenced her to 12 months imprisonment.  The appellant appealed against her sentence on the ground that she is remorseful, she considered the sentence manifestly excessive because she had not committed an offence for the past seven years and she did it this time because her son who is only five years old wanted a video game.  She wanted to be given a chance to turn over a new leaf.

7.I am looking at the previous record of the defendant, she had been given many chances.  She was put on probation for her first two theft offences.  She was given probation again for offering an advantage to a public servant. She was given a suspended sentence for another theft offence, but the defendant who is only 35 years old did not take full advantage of these chances and then resorted to theft again on this occasion.

8.I am told by the appellant that her son is being looked after by her mother, that is the son’s grandmother, and the appellant said she is not well and she has not asked for social welfare assistance for her son.

9.The court in considering whether to interfere with the learned Magistrate’s sentence would look at whether the learned Magistrate’s sentence was manifestly excessive or wrong in principle.  The learned Magistrate was neither wrong in principle nor was the sentence manifestly excessive in the circumstances.

10.Clearly the appellant had not learned any lesson in her previous sentences.  Her last sentence was 12 months’ imprisonment which was for theft and that did not deter her from committing the same crime again.

11.So I see no reason whatsoever to interfere with the learned Magistrate’s sentence, so the appeal is dismissed.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

The appellant in person