HKSAR v. Rai, Phauda Sing

HCMA 236/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 236 OF 2015

(ON APPEAL FROM ESCC 784 OF 2015)

____________

____________

_______________

J U D G M E N T

_______________

1.The appellant was convicted after trial by a deputy magistrate[1] (the magistrate) for the offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210. He was sentenced to an imprisonment of 9 months. He now appeals against the sentence.

Facts

2.On 13 March 2015, at noon, a police officer saw the appellant coming out from Sa Sa Cosmetic Shop (“the shop”) hastily.  The officer intercepted the appellant and conducted a search on him.  Upon search, two bottles of perfume in boxes were found from the inside pockets of his jacket.  The salesman of the shop confirmed that the two bottles of perfume were properties of the shop which were sold at HK$676 each.

The magistrate’s reasons for sentence

3.The magistrate considered the following factors in passing the sentence:-

(i) the stolen goods were high-end luxury products with a total value of HK$1,352; 

(ii) the perfume was not stolen for the appellant’s self-use;

(iii) the appellant was a recidivist with 26 criminal convictions of which 22 were theft.  The last two convictions of theft were on 11 November 2014; and

(iv) the previous convictions did not appear to have any effect on him.  A sentence with deterrent effect and to keep appellant out of the society was warranted.

Grounds of Appeal

4.According to the appellant’s notice of appeal against sentence, the sole ground of appeal was that the sentence was too severe.  At the hearing he further sought to have his sentence reduced to effect his immediate release on humanitarian grounds.

Discussion

5.The appellant had 26 previous convictions and had accumulated 22 previous theft related convictions within the last 10 years.  Save for the initial two convictions for theft the sentences were all of imprisonment ranging from a couple of weeks to 12 months.  Five months previous to the commission of the present offence in November 2014 he was sentenced to imprisonment for two shop theft offences to a total of 8 weeks’ imprisonment.  

6.A deterrent sentence was clearly appropriate in this case as the appellant is a repeat offender. 

7.In HKSAR v. YANG Yan Yun [2014] 1 HKLRD 564, Deputy Judge Woo agreed with the following observations of Louis Tong J in HKSAR v Pang Chak Wai (transliteration), (unrep, HCMA 310/2009).  The case involved theft of goods of relatively low value.

“For cases such as the present one, which involve theft of goods of relatively low value, it is my understanding that, save under individual circumstances, the courts are by and large taking the following approach to sentencing:

(1) Generally speaking, a first offender of shoplifting will be fined unless the case involves an organized act and, in particular, involves a large number of valuable items, in which case different sentencing considerations will come into play;

(2) Where a defendant has many similar previous convictions, the court will consider imposing a custodial sentence. If the goods in question are very small (sic) and not valuable, the court may give the defendant a chance by imposing, for example, a fine or short-term imprisonment;

(3) Where a defendant has many similar previous convictions, then unless he/she has a mental problem, the court will not attach too much weight to the number and value of the items involved but will impose a deterrent custodial sentence. However, it appears that the starting point will not exceed 9 to 12 months.”

8.It has long been established by the Court of Appeal that the sentences for recidivists will be enhanced HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  Therefore the court in sentencing imposes an enhancement of the starting point for persistent offenders.

9.A comparable case to the present one can be found in HKSAR v Ng Kwok Hung HCMA 318/2007.  In that case four bottles of red wine with a total value of HK$956 were stolen.  The appellant had 22 previous convictions most of which were related to shoplifting. Deputy Judge M Poon (as she then was) held that a starting point of 9 months’ imprisonment enhanced to 12 months’ imprisonment was in no way excessive. 

10.The sentencing court must state clearly the starting point adopted failing which it is impossible to know the extent of the enhancement.  In the present case, the magistrate had not indicated the appropriate starting point and what the enhancement was. 

11.The desperate and sad consequence to the appellant’s family and relatives as a result of the massive earthquake in Nepal do not constitute humanitarians reasons for reducing the present sentence. 

12.In light of the present facts, the resulting sentence of 9 months’ imprisonment imposed on the appellant can be regarded as lenient and thus was neither manifestly excessive nor wrong in principle. 

13.The appeal against sentence is dismissed. 

Ms Anthea Kwok, PP of the Department of Justice, for the respondent

The appellant appeared in person