IN THE SUPREME COURT OF HONG KONG
MAGISTRACY APPEAL NO. 355 OF 1996
Coram : Hon Patrick Chan, J. in Court
Date of hearing : 11 July 1996
Date of judgment : 11 July 1996
J U D G M E N T
1. The appellant pleaded guilty to one count of theft and was sentenced to 14 months imprisonment. He now appeals against sentence.
2. The facts are that the victim was having lunch in the Oliver’s Super Sandwiches in the Landmark. He had put his handbag on a seatnext to him. The appellant passed by, picked up the handbag and started to make his way out of the shop. He was then chased afterand caught red-handed. He then dropped the handbag which contained less than $60 of articles or items.
3. The appellant is 36 years of age. He had very little education and according to the reports which were called for by the learnedMagistrate, he had suffered from polio as a child and had a disability to his right hand and left leg. He had been a drug addictbefore. I think it is only fair to mention that he had 10 previous convictions, almost all of them were theft offences. He had beento prison on eight occasions, and on some occasions, for up to 12 months. He had occasional jobs and therefore it appears that hisdisability had not affected him to the extent that one would have expected.
4. The learned Magistrate treated this case as a case of pickpocketing. He adopted a starting point of 15 months. He took into considerationthe appellant’s plea but mentioned that it was a plea at the very last moment and that there was no indication of any genuine remorse.
5. Before me, counsel submitted that this was not a case of pickpocketing. It should be somewhere between a case of pickpocketing anda case of shoplifting. For shoplifting, the usual sentence would be a short custodial sentence whereas for a pickpocketing offence,it would be in the region of 12-15 months imprisonment. Counsel also submitted that the learned Magistrate was wrong to adopt thestarting point of 15 months and failed to give sufficient discount for his plea.
6. I do not agree that pickpocketing cases must involve a sophisticated modus operandi or some special skill by a professional thief.Pickpocketing involves a variety of activities – ranging from picking the victim’s items conveniently from a bag carried by the victimto other more sophisticated manoeuvres. I agree with the learned Magistrate that this is more a case of pickpocketing than shoplifting.
7. For the pickpocketing offence, the usual tariff would be 12-15 months. The learned Magistrate adopted the higher level of 15 monthsin view of the circumstances of the case. Of course the appellant is not punished for his record which I have mentioned already,but I think the learned Magistrate is perfectly entitled, in the circumstances of this case, to adopt the higher level of 15 months,the appellant not being a first offender.
8. The usual one-third discount is, in my view, reserved for those cases where the defendant pleads guilty at the earliest possibleopportunity, has shown genuine remorse and has saved the court and everybody some time. In the present case, the appellant appearedto have pleaded guilty only at the very last moment – on two previous available occasions, he did not. It is also quite clear thatthere was no sign of any genuine remorse on the appellant. He cannot, of course, be punished for his record. But I think his longcriminal record, particularly offences of similar nature, would not assist him in mitigation but would deprive him of the benefitof the full discount. So in the circumstances, although it appears to be slightly on the high side, I think the sentence of 14 monthsimprisonment in the circumstances is neither wrong in principle nor manifestly excessive. I would dismiss the appeal.
Mr Wesley Wong, Senior Crown Prosecutor, for Crown
Mr Wilson Chan, inst’d by Director of Legal Aid, for Appellant