HKSAR v. TSE TSZ SHAN
- Citation
- HKSAR v. TSE TSZ SHAN
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 30 January 2007
- Posture
- Criminal Theft / Appeal Against Sentence (rehearing on Sentence)
- Case number
- HCMA1133/2006
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 30 January 2007
- Posture
- Criminal Theft / Appeal Against Sentence (rehearing on Sentence)
- Case number
- HCMA1133/2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The judge concluded that while the appellant's lung cancer and guilty plea warranted mercy and a modest reduction, they did not justify avoiding immediate imprisonment; accordingly the instant 3 month term was upheld and the previously suspended sentence was partially activated at 4 months to run consecutively, reducing total time to 7 months rather than 10 months.
Court disposition
Appeal allowed in part; sentence varied to reduce total imprisonment from 10 months to 7 months.
Orders
- The sentence of 3 months imprisonment for theft is upheld.
- Vary the previously suspended 8 month sentence by imposing 4 months to run consecutively to the 3 month term.
- Total immediate imprisonment to be served is 7 months (3 months + 4 months consecutively).
02
Material facts
Parties
Tse Tsz-
AppellantThe Government
Respondent Counsel: Ms Olivia Tsang, Government CounselAmounts and remedies
- Cash Stolen: HKD 850
- Immediate Imprisonment: months 3
- Activated Portion of Suspended Sentence: months 4
- Total Imprisonment Ordered: months 7
03
Procedural history
Posture
Criminal Theft / Appeal Against Sentence (rehearing on Sentence)
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed for theft was excessive given the appellant's medical condition and guilty plea
- 02
Whether and to what extent a previously suspended sentence for drug possession should be activated and varied
- 03
Whether immediate imprisonment was necessary despite serious medical illness
Party arguments
- Applicant
- The appellant relied on her serious lung cancer, guilty plea and time already spent in custody to seek a reduced sentence and earlier release.
- Respondent
- The respondent (prosecution) maintained that immediate imprisonment was appropriate and that the suspended sentence for drug possession should be activated in part given the offending and public interest in drug matters.
05
Court’s reasoning
Legal principles
- 01
Deputy High Court Judge P Line judgment (this case)
A court must temper justice with humanity by taking into account personal mitigation such as serious medical conditions when sentencing.
- 02
Deputy High Court Judge P Line judgment (this case)
An appellate sentencing court conducting a rehearing may impose a different sentence without first concluding the lower court was wrong, provided it applies lawful sentencing principles.
- 03
Deputy High Court Judge P Line judgment (this case)
Activation and variation of suspended sentences for drug offences require balancing public protection and individual mitigation; serious illness may justify partial mitigation but does not necessarily preclude imprisonment.
06
Ratio, limits and disposition
Ratio decidendi
The judge concluded that while the appellant's lung cancer and guilty plea warranted mercy and a modest reduction, they did not justify avoiding immediate imprisonment; accordingly the instant 3 month term was upheld and the previously suspended sentence was partially activated at 4 months to run consecutively, reducing total time to 7 months rather than 10 months.
Obiter and limits
- The appellant's medical condition, while serious, did not present an imminent risk of death.
- Suspended sentences in drug-related cases are difficult and require careful balancing of mitigation and public duty.
- Heroin use in this case was described as an attempted relief of pain which the court noted in mitigation.
Court disposition
Appeal allowed in part; sentence varied to reduce total imprisonment from 10 months to 7 months.
- The sentence of 3 months imprisonment for theft is upheld.
- Vary the previously suspended 8 month sentence by imposing 4 months to run consecutively to the 3 month term.
- Total immediate imprisonment to be served is 7 months (3 months + 4 months consecutively).
Source and reliance status
Court of First Instance · 30 January 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 30 January 2007
bjbj 7ZAO ellant _____ Coram: Deputy High Court Judge Line in Court Dates of Hearing: 30 January 2007 Date of Judgment: 30 January 2007 ____
J U D G M E N T ____ 1. This is an appeal against sentence. The Defendant pleaded guilty to theft. She had been on board a vessel, a gambling vessel, and went into a cabin suite and took someone s wallet, which contained $850 in cash and an Octopus Card. The door had been left unsecured. The Appellant had been losing at gambling and she went and lost the $850 she had just stolen.
2. She received, for that conduct, a sentence of 3 months in prison. The Magistrate also activated 7 months of an 8 months suspended sentence to run consecutively. That had been imposed for the possession of dangerous drugs.
3. In the ordinary course of events, that would be a merciful sentence overall but the unusual thing about this case is that the Appellant suffers from lung cancer. The Magistrate was aware of that and taking that into account, along with the plea of guilty, he adopted as low a starting point as he thought possible in the circumstances and imposed as low a sentence as he regarded as appropriate.
4. I have had a further medical report on the Appellant. It confirms the diagnosis and describes her current condition as stable. This is not a case where there is any imminent risk of death. Of course, the gravity of her medical condition is only too obvious.
5. I shall adopt the same approach as the Magistrate. He tempered justice with humanity. I feel able to go a little further than he did. I have absolutely no criticism of his sentence. This is a rehearing on sentence. I do not have to say he is wrong in order to pass a different sentence. The fact is I see this lady now having spent two months in custody since the beginning of November. Even in the short time I have seen her in court, the burdens on her shoulders are only too apparent.
6. I agree with the Magistrate that the medical condition is not such that she can have her freedom in the circumstances. There must be immediate imprisonment but I shall reduce the sentence that she received modestly. I shall leave undisturbed the sentence of 3 months, and I shall impose 4 months of the suspended sentence to run consecutively. The total she has to serve is, therefore, 7 months and not 10 months and I have done that as an act of mercy.
7. Suspended sentences for people who are involved in drugs are difficult but one of the matters she referred to was that her medical condition does give her considerable pain and that the heroin she took that resulted in the suspended sentence was a relief of it. So consistent with my public duty and the proper approach to problems of this kind, I have done my best, I hope, to strike a balance and that means that this lady will now have an earlier release date. (P Line) Deputy High Court Judge Representation: Ms Olivia Tsang, Government Counsel, of the Department of Justice, for the Respondent Appellant: Tse Tsz-
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