HKSAR v. Patarroyo Jimenez Guillermo

CACC 256/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 256 OF 2016

(ON APPEAL FROM DCCC NO 324 OF 2016)

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J U D G M E N T

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1.The applicant was convicted after trial in the District Court before Deputy Judge Chainrai (“the judge”) of one charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200, and on 26 July 2016 was sentenced to 30 months’ imprisonment. On 15 August 2016, the applicant filed a Notice of application for leave to appeal against his sentence (Form XI) only.

The facts

2.On 6 February 2016, PW1 was standing near a snack shop at Kwai Chung Plaza waiting for her friend to collect some food, when the applicant, who was standing close behind her, inserted his hand into PW1’s coat pocket and attempted to steal her Smartphone. Sensing that her telephone was being removed from her pocket, PW1 stepped to her left while turning to her right, at which point she saw the applicant standing very close to where she had just been standing.  She noticed that the applicant had a garment over his right forearm which covered his right hand[1].  However, the applicant had been unsuccessful in removing the Smartphone from PW1’s coat pocket.  A nearby police officer in plainclothes had observed the applicant’s actions and subsequently arrested him.  Under caution, the applicant denied trying to steal the telephone.

3.The applicant had come to Hong Kong from Colombia in July 2010, and lodged a non-refoulement claim in September 2011.  He depended on financial assistance granted to asylum seekers and lived in Sham Shui Po.  When he was arrested, he had HK$5,438.5 and US$600 on his person[2].

Mitigation

4.In mitigation, it was submitted that the applicant was 61 years old, there was no evidence that he was working with a syndicate and he had not used any weapon in committing the offence.  It was said to be an “opportunistic” crime, which had failed.

Reasons for Sentence

5.In her reasons for sentence, the judge noted that the applicant’s criminal record dated back to 2011, and that he was still serving his most recent sentence.  The judge considered the guidelines laid down in HKSAR v Ngo Van Huy[3], which indicated a usual starting point, depending on the circumstances, of 12 to 15 months’ imprisonment for pickpocketing after trial for a first offender.  She also bore in mind the observations of the Court in HKSAR v Wong Kang Sun[4] in relation to double counting.

6.The judge rejected the notion that this was an opportunistic crime.  She held that the applicant’s premeditation could be demonstrated by the fact that he had travelled all the way from Sham Shui Po to a shopping mall in Kwai Chung on a Saturday evening, and carried out the offence by covering his hand with a garment during the attempt.  Given the degree of planning and sophistication involved, the judge adopted a starting point of 15 months’ imprisonment, which she enhanced by 3 months, bearing in mind that the offence was committed in a crowded place just before Chinese New Year.  A further enhancement of 9 months’ imprisonment was imposed for his repeated offending.  The applicant had at the time 6 previous convictions, 5 for theft and one for conspiracy to commit theft, and was currently serving a sentence of 12 months’ imprisonment for pickpocketing.

7.The judge also considered the applicant’s commission of the offence whilst on bail, and having referred to the authorities of R v Cheung Chi Man[5], HKSAR v Yuen Gang Shing[6] and HKSAR v Leung Ting Fung & anor[7], enhanced the sentence by a further 2 months.  For the applicant’s status as a torture claimant and abusing the hospitality extended to him by the people of Hong Kong, the judge further enhanced the sentence by one month.  In the result, the applicant was sentenced to a total of 30 months’ imprisonment for the offence.  However, in consideration of the overall totality of sentence, the judge ordered that 2 months of the sentence should run concurrently to the 12 months’ imprisonment already being served.

Grounds of Appeal

8.In his Form XI, the applicant submitted that the sentence was too harsh and requested a reduced sentence.  He has reiterated this plea before me this morning.

The respondent’s submissions

9.Mr Andrew Li, on behalf of the respondent submitted that the judge was correct in her approach in adopting a higher starting point of 15 months’ imprisonment, before taking into account the applicant’s previous convictions.  It was submitted that the various enhancements given for (i) committing the offence in a crowded public place, (ii) repeated offending, (iii) commission of a similar offence whilst on bail, and (iv) tarnishing the reputation of this City by abusing the hospitality extended to him by the people of Hong Kong were appropriate.  The respondent relied on HKSAR v Sandagdorj Altankhuyag[8], at para 23, to submit that the values to be given to different aggravating features were best assessed by the trial judge, who in this case had heard and seen the witnesses at a trial.

Consideration

10.It is clear from the facts and from his antecedents that the applicant is a professional pickpocket.  By the time he came to be sentenced for the present offence, the applicant had amassed over a period of no more than 6 years in Hong Kong no less than 6 previous convictions for dishonesty, for which he has cumulatively received sentences totalling 5 years’ imprisonment.  For the present offence, he was given in effect a further 28 months’ imprisonment.

11.The judge’s adoption of 15 months’ imprisonment as a base starting point given the circumstances of the pickpocketing offence in question, before enhancing the sentence for the various factors she particularised, was appropriate and consistent with the authorities to which she referred.  Furthermore, she was aware of the problem of double counting in this area of sentencing and sought to avoid it.  She was also conscious of the overall totality of sentence, bearing in mind the sentence the applicant was already serving, and ordered part of her sentence to run concurrently with his existing sentence.

12.The applicant did not plead guilty and had a bad criminal record for dishonesty, including several similar offences.  He committed a serious example of the offence, as a torture claimant, whilst on bail for exactly the same offence.  I do not see any reasonably arguable ground of appeal in this case.

13.The application is refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Andrew Li SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person