HKSAR v. Ng Ah Shan

CACC 138/2017

[2018] HKCA 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 138 OF 2017

(ON APPEAL FROM DCCC NO 953 OF 2016)

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Before:  Hon Macrae VP and Zervos J in Court

Date of Hearing:  13 July 2018

Date of Judgment:  13 July 2018

Date of Reasons for Judgment: 18 July 2018

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Reasons for Judgment of the Court):

1.The applicant applied to renew her application for leave to appeal against sentence, having had the application dismissed by McWalters JA on 1 March 2018 who handed down his reasons for judgment on 13 March 2018. He found that the complaints by the applicant were not capable of founding a reasonably arguable ground of appeal and that there was no error by the judge in his approach to the sentence that he passed on her.

2.At the hearing, we refused the renewed application and dismissed the appeal.  We said that we would give reasons for our decision in due course which we now do.   

A brief overview of the case

3.On 4 May 2017, the applicant stood trial in the District Court before District Court Judge Casewell charged with nine offences of theft, contrary to section 9 of the Theft Ordinance, Cap 210, (Charges 1 to 9), and one offence of possession of identity cards relating to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177, (Charge 10).  

4.The nine theft charges concerned the stealing of property, variously consisting of handbags or wallets and the personal items inside, from different persons between 1 October 2010 and 8 June 2016.  The possession of identity cards charge concerned the Hong Kong Identity Cards of nine other persons which had been stolen by the applicant as variously alleged in eight of the theft charges, except for one which was not the subject of a theft charge.

5.The prosecution presented its case against the applicant after she pleaded not guilty to the charges.  Some five witnesses were called when the case was adjourned to the following day.  At the return hearing, the applicant changed her plea and pleaded guilty to all charges. 

6.On 10 May 2017, the applicant was sentenced by the judge to a total sentence of 35 months’ imprisonment.

The background and facts of the offences

7.The nine theft charges were committed on separate occasions involving different victims who had property belonging to them stolen by the applicant.  On all occasions except for one, the victims were shopping and left their handbag or wallet unattended, only to discover later that it had been stolen.  The property stolen variously included, identity documents, cash, bank and credit cards, and other personal items. 

8.Charge 1 was committed in mid-October 2010 when the victim, whilst shopping at Harbour City, Tsim Sha Tsui, placed her handbag in her son’s stroller which she left unattended.  She later noticed that her handbag had been stolen.

9.Charge 2 was committed in mid-January 2011 when the victim had her wallet stolen while she was walking alone in Sham Shui Po, Kowloon.

10.Charge 3 was committed in mid-February 2011. The victim placed her handbag in a shopping trolley at Festival Walk, Kowloon Tong, which she briefly left unattended and later realized that it had been stolen.

11.Charge 4 was committed in May 2011 in a clothing boutique in Causeway Bay.  Whilst the victim was trying on clothes, she left her handbag outside the fitting room, which she later discovered had been stolen. 

12.Charge 5 was committed in August 2011 when the victim had her handbag stolen whilst trying on clothes in a boutique in Harbour City, Tsim Sha Tsui. 

13.Charge 6 was committed on 28 November 2015 when the victim had her wallet stolen whilst trying on clothes at a boutique store in the IFC Mall, Central. 

14.Charge 7 was committed in December 2015.  The victim had placed her handbag in a shopping trolley in Festival Walk, Kowloon Tong, which she left unattended for a while and later discovered it had been stolen.

15.Charge 8 was committed on 28 February 2016.  The victim had placed her handbag in a shopping trolley in a supermarket in the IFC Mall, Central.  Whilst her attention was drawn elsewhere, she later discovered her handbag had been stolen.  On that occasion, CCTV cameras of the supermarket captured the applicant, wearing a mask, picking up items from the victim’s shopping trolley.

16.Charge 9 was committed on 8 June 2016.  The victim was shopping in Tsim Sha Tsui and had placed his wallet in his baby’s stroller, which he left unattended.  He later discovered his wallet had been stolen.  

17.The police identified the applicant from CCTV footage and on 8 June 2016 attended her residential address.  The applicant was arrested and the police searched her premises where they found a large quantity of stolen items, including nine Hong Kong Identity Cards relating to other persons.  This was Charge 10.

The background and mitigation of the applicant

18.The applicant was 44 years of age at the time of her sentence.  She has an extensive criminal record dating back to 1998 for numerous offences of theft which were mainly described as shoplifting or pickpocketing.

19.The judge was informed that she was divorced some 10 years ago with a son and a daughter, aged 16 and 19 respectively, who lived with their father.  She was educated up to Form 3 level.  She lived alone and had worked part-time as a waitress earning about $400 a day prior to her arrest.  The judge was also informed that as a result of physical abuse by her former husband, the applicant had poor vision in her right eye, and had suffered from depression since the year 2000. 

20.Defence counsel submitted to the judge the case of HKSAR v Ng Ah Shan [2015] 1 HKLR 783 which was a decision of the Court of Appeal in relation to an appeal by the applicant of her sentence on four theft charges that occurred on 8 June 2013.  The judge’s attention was drawn to a reference in that decision of a previous case in April 2012, where the applicant had put forward her depression as mitigation and the court ordered concurrent sentences of the theft charges for which she had been convicted.  The judge was urged to follow the same course.

21.Defence counsel further submitted that the criminality of the possession of the identity cards of others was subsumed in the theft charges and so the sentence for that charge should be made concurrent with the theft charges.  He said that the only reason the applicant kept the identity cards was because she did not know what to do with them and had no intention to use them for an illegal purpose.  He referred to HKSAR v Li Chang Li, HCMA 935A/2004, 4 March 2005, unreported, where a starting point of 12 months’ imprisonment upon a guilty plea was appropriate for possession of a forged identity card or identity card relating to another, where the person’s intention was to conceal their identity and seek unlawful employment in Hong Kong.  He submitted that these circumstances did not arise in the present case.

22.Defence counsel finally submitted the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, which provided that where a defendant pleaded guilty in the middle of a trial, the discount should be less than 20 percent.[1] He urged the judge to give the applicant the full 20 percent because she had admitted a large part of the prosecution case and she had not deliberately prolonged the trial or put the prosecution to unnecessary expense.

The reasons for sentence

23.The judge gave detailed reasons for the sentence he imposed on the applicant, carefully navigating his reasons to address the various issues arising from the case. 

24.Having set out the facts underlying each of the charges, the judge noted the applicant’s extensive criminal record for similar offences.  He pointed out that the applicant had 21 previous court appearances which were mainly for theft and variously described as shoplifting and pickpocketing cases.  The most recent case was on 27 June 2016, when the applicant was sentenced to 4 months’ imprisonment for shoplifting.  The most recent pickpocketing case was in 2013 for which she was sentenced to 24 months’ imprisonment.  This was the case that went on appeal in HKSAR v Ng Ah Shan where the Court of Appeal said:[2]

“The applicant is obviously an incorrigible recidivist. She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her.”

25.In that case, the applicant had appealed her sentence, having been convicted on her own plea of four charges of theft which all occurred on the same day, 8 June 2013.  Three of the charges were described as pickpocketing and the other charge was described as shop theft.  The Court of Appeal endorsed the starting points on the pickpocketing charges of 15 months, which were enhanced by 9 months to 24 months’ imprisonment because of the applicant’s criminal record, and on the shop theft charge of 6 months’ imprisonment.  The Court did not disturb the sentences for the individual charges but adjusted the sentences so as to result in an overall starting point for these offences of 3 years’ imprisonment, which was reduced by one-third for the applicant’s guilty plea to 2 years’ imprisonment.

26.The judge noted that the applicant had used a similar modus operandi in the present cases of theft as she had in the cases before the Court of Appeal.  He therefore adopted the same approach to sentencing as had been confirmed as appropriate by the Court of Appeal.  He employed the sentencing guidelines for pickpocketing, and adopted a starting point of 15 months’ imprisonment for each of the nine theft charges which he then enhanced by 9 months to take account of the aggravating factor of the applicant’s criminal record.  This resulted in a final starting point of 24 months for each of the nine theft charges.  He noted that it was open to him to increase the starting point because the applicant had continued to commit theft offences, at least on four more occasions since 2014 after she had been dealt with by the Court of Appeal. 

27.The judge then considered the starting point that he should adopt for the single charge of possession of identity cards relating to others.  He regarded the fact that the applicant possessed nine identity cards as aggravating the offence and said he could see no reason to distinguish this charge from the theft charges.  He therefore adopted the same starting point of 24 months’ imprisonment for this charge.

28.Of the discount that the judge should allow the applicant for her late plea of guilty, he noted that the change of plea had occurred not on the first day of trial but well into the prosecution case.  He said that a 20 percent discount was not appropriate for the applicant and he would award her only a 15 percent discount.  For each charge, the final sentence was reduced from 24 months to 20 months’ imprisonment. 

29.Of the appropriate totality of the sentence, the judge noted that the charges covered a long period from 2010 to 2016, during which the applicant had been convicted and sentenced in relation to other offences of theft.  He noted that the Court of Appeal in HKSAR v Ng Ah Shan,despite considering the applicant an incorrigible recidivist, when dealing with three charges of pickpocketing on the same day imposed an overall starting point of 3 years to reflect the gravity of the case.  He correctly noted that the present case was different from the last occasion because the court was to sentence the applicant in relation to nine charges of a form of pickpocketing offence, some of which he acknowledged were quite old.  In any event, the judge reasoned that the overall starting point for the present offences should be at least the same as before, bearing in mind that the applicant had continued to commit further offences.  He therefore took as an overall starting point of 3½ years’ imprisonment which he reduced by 15 percent for the defendant’s late plea of guilty, resulting in a sentence of 35 months’ imprisonment. 

30.To come to this final sentence, the judge divided the offences into two groups which reflected the time period of the offences.  Charges 1 to 5 were in the period of 2010 and 2011, and Charges 6 to 10 were in the period from 2015 and 2016.  He ordered that the sentences on Charges 1 to 5 be concurrent to each other and the sentences on Charges 6 to 10 also be concurrent to each other, but that 15 months of the concurrent sentences on Charges 6 to 10 should be consecutive to the concurrent sentences on Charges 1 to 5. 

The grounds of appeal

31.The applicant appears in person.  She has submitted two letters to the Court.  One is dated 28 September 2017, which sets out a series of complaints.  It was previously considered by McWalters JA when dismissing her leave application.  The other is dated 17 March 2018, in which she elaborated on her complaints. 

(i) Reason for the late guilty plea

32.The first complaint from the applicant is that she regretted she pleaded guilty halfway into the trial which deprived her of being treated more leniently if she had done so earlier.  She claimed that she did not understand her situation when she was given legal advice because most of the offences were old and she had no recollection of them. 

33.She has added in her recent letter that seven out of the nine charges occurred before or in 2015.  She said that the evidence against her was “relatively ambiguous” and she failed to recall these matters. She also claimed that she did not know how to enter her pleas because the stolen Hong Kong identity cards were also charged under Charge 10. 

34.Mr David Chan, for the respondent, submitted in reply that the applicant’s late change of plea took place during the presentation of the prosecution case after a total of five witnesses had been called.  Apart from three civilian witnesses who were victims of some of the pickpocketing offences, two police officers who were responsible for the arrest and house search also gave evidence.  These witnesses were cross-examined.  The applicant originally took issue with the fact of the thefts and identity of the thief.  He added that the applicant would have fully appreciated her legal position in light of her long criminal record.

35.We have no hesitation in rejecting the applicant’s complaint.  She is well familiar with the court processes as evidenced by her extensive criminal record and appearances in court.  Some of her cases have in fact gone on appeal.  It would therefore be very surprising that she was not fully conversant with the legal processes and procedures, and fully appreciative of her situation at the time.  The applicant’s claim that the evidence against her was “relatively ambiguous” is without substance.  The charges flowed from the stolen property that was found in her residence.  The applicant’s point about the stolen Hong Kong identity cards also being charged under Charge 10 would not have prevented her from pleading guilty to Charges 1 to 9, or even if pleading guilty to all of the charges, making a submission in mitigation in relation to Charge 10, as was in fact done before the judge. 

(ii) Reason for keeping the identity cards

36.The second complaint is that the court did not take into account her claim that she had kept the identity cards which were the subject of the theft charges because she was afraid they would be used by others illegally if she discarded them, and that having hidden them, she forgot about them.  

37.The judge rejected this explanation, correctly in our view, and for whatever reason, the fact remains that she kept a considerable number of identity cards hidden in her bathroom. 

(iii) The applicant’s criminality not akin to pickpocketing

38.The third complaint is that the nature of the theft offences involved her stealing other people’s property when the victims were not paying attention which was not as serious as pickpocketing where the sentence is more severe.  The applicant advanced this argument before the Court of Appeal in HKSAR v Ng Ah Shan which was soundly rejected, as we also reject it.  There the applicant sought to suggest that her conduct was “walking away with another person’s property”, rather than “pickpocketing”.  This artificial distinction was rejected by the Court which stated:

“24. … If ‘walking away with another person’s property’ is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately, steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of ‘walking away with another person’s property’ is essentially as serious in nature as the offence of ‘pickpocketing’. This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience. …

25. … As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft offence and the offence of ‘pick-pocketing’ in terms of gravity.”

39.It has been said time and again that offences of pickpocketing need to be visited with appropriate penalty to deter people from engaging in this type of offence and for clear and obvious reasons.  It causes significant inconvenience and disruption to the lives of victims who are going about their ordinary business in public places and experience a violation of their privacy and a loss of their property.  The concept of pickpocketing extends to offenders who target people for theft by taking advantage of an opportunity when a person leaves a valuable item, such as a bag or wallet, unattended while he or she is distracted or busy doing something else.

(iv) The applicant’s mental condition

40.The fourth complaint is that the applicant offended because of a psychological problem and an inability to control herself which she attributes to suffering from depression. 

41.It was said in mitigation before the judge that the applicant had been suffering from depression since 2000, but nothing further was submitted to explain any mental condition or disorder and the effect of it, if any, on her behaviour.  All we can say is that since 2000, the applicant has continuously offended by stealing and that was reflected by her criminal record as well as the large quantity of stolen property that was found in her residence when it was searched by the police.

(v) Comparison with HKSAR v Chan Yuen-lin

42.The fifth complaint is in the form of a comparison by the applicant of her case with HKSAR v Chan Yuen-lin.[3]  Mr Chan submitted that the two cases are entirely different.  We agree. 

43.The defendant in that case had pleaded guilty to three charges of theft which involved her stealing other people’s wallets.  The defendant had a criminal record including some 14 cases of theft for pickpocketing. The sentencing judge adopted a starting point of 12 months’ imprisonment on each charge, and increased the sentence to 18 months for the aggravating factor that previous sentencing had failed to deter the defendant from committing offences.  The judge reduced the  sentence by a third for the defendant’s guilty plea to 12 months’ imprisonment.  Applying the totality principle, the judge imposed an overall sentence of 18 months’ imprisonment. 

44.The judge in his reasons noted that the defendant’s psychiatric and psychological problems had become mixed up in her offending history.  He was strongly of the view that the defendant had struggled with issues relating to both psychological and psychiatric conditions as supported by reports.  He also noted that the defendant accepted her responsibility for the offences and had shown a degree of remorse.

45.As noted by Mr Chan, the circumstances of Chan Yuen-lin are different from the present case where there are nine thefts involving nine different victims.  He stressed that the applicant’s criminal record was considerably worse than that of the defendant in Chan Yuen-lin. The applicant had 21 previous appearances in court involving 39 offences, most of which were thefts described as pickpocketing or shoplifting that were similar to the kind as committed in the present case.

46.This Court has repeatedly stated that a comparison with sentences passed in other cases is seldom of much utility, and can sometimes be misleading, because the circumstances of the offence and the offender will be different as between different cases.

Discussion

47.We find no basis for complaint by the applicant for the sentence imposed on her by the judge. 

48.It is worth referring again to the Court of Appeal decision in relation to the applicant where she had been convicted and sentenced for three offences of theft in relation to three different victims and one offence of shop theft which all occurred on the same day, 8 June 2013.  

49.The Court of Appeal in considering the applicant’s case applied HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and in relation to the three victim thefts concluded that she consciously preyed on the negligence of the victims and deliberately seized the opportunity presented by their inattention to steal their belongings placed nearby, including their purses containing not only cash but also their identity documents and bank cards.  From this description, and given the circumstances of the present cases, nothing seems to have changed with the applicant. 

50.The Court went on to state that the applicant was “an incorrigible recidivist” because of her appalling criminal record, and that an overall starting point of 3 years’ imprisonment sufficiently reflected the gravity of the case which was reduced by one-third for her guilty plea to 2 years’ imprisonment. 

51.In Ngo Van Huy, Ma CJHC (as he then was) laid down guidelines and principles for the type of offence that was descriptively referred to as pickpocketing where he suggested that 12 to 15 months’ imprisonment was appropriate for a first time offender after trial, although adding that any aggravating or mitigating features should be taken into account.  An aggravating feature that he specifically mentioned was where “the accused was a repeat offender or, worse still, a persistent one”.  He noted at paragraph 9(5):

“…Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him: see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at pp.833-834. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence… .”

52.The applicant’s case needs to be looked at in broad context.  She has been convicted of numerous offences of theft, involving shoplifting or pickpocketing, for which she has received various forms of punishment, including terms of imprisonment, from 1998 to 2016.  There was also an occasion in April 2009 that she was sentenced to attend a psychiatric centre for 4 months.  This has not deterred her from continuing to flout the law and to reoffend. 

53.The charges in the present case date from 2010 to 2016 and it is apparent from the applicant’s criminal record that she had been dealt with for other offences of this type throughout this period for which she had received terms of imprisonment. 

54.On each of the theft charges (Charges 1 to 9), the judge adopted a starting point of 15 months’ imprisonment which he enhanced by 9 months to 24 months’ imprisonment for the applicant’s repeat offending.  This followed the Court of Appeal’s approach in the applicant’s previous appeal case.  It was mentioned by the judge that the age of some of the theft offences was old.  Five of the theft offences were committed in 2010 and 2011, but we find that the age of these offences in the circumstances of this case would not provide any justification to depart from imposing the appropriate level of punishment, especially when the applicant had not been law-abiding in the meantime. Justice has long arms, as well as a long memory. 

55.On the possession of the identity cards charge (Charge 10), the judge followed the sentencing guideline of HKSAR v Li Chang Li in which provides that in the absence of exceptional circumstances, the sentence upon a guilty plea for possessing a forged identity card or an identity card relating to another should be 12 months’ imprisonment irrespective of whether the offender was lawfully staying in Hong Kong, and should be 15 months’ imprisonment where the identity card has been displayed or used for seeking illegal employment or extending the period of stay in Hong Kong.  He adopted a starting point of 24 months’ imprisonment because of the aggravating factor that there were nine identity cards in total which was a considerable number. 

56.The reduction to the applicant’s sentence in the order of 15 percent for her late guilty plea was entirely appropriate, given it was made halfway into the prosecution case.  This resulted in a sentence of 20 months’ imprisonment on each of the ten charges. 

57.It is true that eight of the nine identity cards in Charge 10 were the subject of the theft charges.  However, it would appear that the judge addressed this factor by essentially treating the sentence on Charge 10 concurrently with the other sentences in adopting an overall starting point of 3½ years’ imprisonment, which resulted in a sentence of the 35 months’ imprisonment after the 15 percent reduction.

58.We consider that the applicant was most fortunate that her sentence was not higher.  The sentence could have been further enhanced for the multiplicity of theft offences that occurred over a protracted period. 

Conclusion

59.For the reasons that we have given, we found that there was no basis for complaint by the applicant for the sentence imposed on her, and accordingly the renewed application for leave to appeal was refused and the appeal was dismissed.

Mr David Chan, SADPP of Department of Justice, for HKSAR

The applicant appeared in person