HKSAR v. Mateluna Araya Hugo Pedro and Aothers

CACC 369/2019

[2020] HKCA 702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 369 OF 2019

(ON APPEAL FROM DCCC NO 618 OF 2019)

________________________

________________________

Before:  Hon Zervos JA in Court

Date of Hearing:  17 August 2020

Date of Judgment:  21 September 2020

________________________

J U D G M E N T

________________________

Introduction

1.On 4 December 2019, the three applicants pleaded guilty to various offences of theft, contrary to section 9 of the Theft Ordinance, Cap 210, before District Court Judge Clement Lee (the Judge).  He sentenced the 1^st and 2^nd applicants each to a total of 42 months’ imprisonment and the 3^rd applicant to a total of 36 months’ imprisonment.

2.On 27 December 2019, the 3^rd applicant filed a notice of application for leave to appeal against sentence.  On 3 January 2020, the 1^st and 2^nd applicants each filed a notice of application for leave to appeal against sentence out of time.  Whilst the 1^st and 2^nd applicant did not file their notices within the prescribed period, they were only late by a few days and accordingly I will consider their applications.

The charges

3.The charges on which the applicants admitted their guilt were as follows. 

4.Charge 1 alleged that the 1^st and 2^nd applicants, on 21 February 2019, at the Yu Teahouse in Tsim Sha Tsui, stole one handbag, one purse, cash in the sum of $4,500, two bank cards, four credit cards and one mobile telephone from Ms Chen Yanrong (PW1). 

5.Charge 2 alleged that the 1^st, 2^nd and 3^rd applicants, on 23 February 2019, at the Wan Chai MTR Station, together with other persons unknown, stole cash in the sum of $130,740 from Ms Chang Ho Yi, Ivy (PW2). 

6.Charge 3 alleged that the 1^st, 2^nd and 3^rd applicants, on 27 February 2019, at the Hong Kong Convention and Exhibition Centre, together with another person unknown, stole one bag, one notebook computer, one pack of jewelry, one People’s Republic of China Identity Card, one Entry/Exit Permit for travelling to and from Hong Kong and Macau, one People’s Republic of China passport, one company stamp, cash of Renminbi 202.5 and some personal items from Ms Wang Yanxiu (PW4). 

7.Charge 4 alleged that the 2^nd applicant, on a day unknown between 14 and 27 February 2019, at a McDonald’s restaurant in Central, stole cash of Renminbi 50 from another person. 

The facts

8.The facts outlined to the judge in the summary of facts and admitted by the applicants show the offences were committed as follows. 

9.The 1^st, 2^nd and 3^rd applicants are Chilean nationals who entered Hong Kong as visitors on 5, 14 and 6 February 2019, respectively.  They were arrested for the offences for which they pleaded guilty on 27 February 2019. 

Charge 1

10.At about 4:30 pm on 21 February 2019, PW1, whilst having tea at Yu Teahouse, left her Gucci handbag on a chair behind her back.  About 15 minutes later, she found her handbag had gone missing.  The handbag contained the items particularised in Charge 1. 

11.CCTV footage from the Yu Teahouse captured the 1^st applicant walking across to PW1’s table, whilst she sat there having tea with three friends.  The 2^nd applicant was standing at a nearby window pretending to take photographs of the view and himself with his mobile telephone.  As this was happening, the 1^st applicant sat on a chair behind PW1.  Using his backpack to hide his hand, the 1^st applicant grabbed PW1’s handbag from the chair and put it in his backpack.  Both the 1^st and 2^nd applicants quickly left the teahouse, having only stayed there for less than 3 minutes.

12.The 1^st applicant after he was arrested participated in a video record of interview, in which he admitted stealing the handbag.  He was then shown the CCTV footage, and said he recognised the purple mobile telephone which was in PW1’s bag, saying he only took it because he had no mobile telephone himself.[1]

13.The 2^nd applicant after he was arrested also participated in a video record of interview, in which he stated that he went to the shopping mall with his friend to buy some sport shoes, and identified the 1^st applicant in the CCTV footage as his friend, who was known to him as “Hugo”.  Hugo saw a bag was about to fall down from a chair and took the bag, after which he followed Hugo.  CCTV footage was played to the 2^nd applicant and he recognised himself in the video footage.  The person he identified as Hugo was a reference to the 1^st applicant.

14.It was admitted in the summary of facts that the 1^st and 2^nd applicants stole PW1’s handbag and its contents being property belonging to PW1.[2]

Charge 2

15.At about 12:58 pm on 23 February 2019, PW2 was waiting for a train at Wanchai MTR station.  She was holding in her hand a plastic bag, containing $130,740 cash.  Before she boarded the train, a South American man standing in front of her “bounced at her and started coughing as he bent towards PW2”.[3] Another South American man on the platform, then made eye signals with the first South American man, while a third South American man suddenly jumped off the train and back onto the platform before the train doors shut.  The men walked away from the platform as a group, while PW2 was now in the train travelling to Causeway Bay.  She found that her bag had been slashed and the amount of cash had gone missing. 

16.The 1^st applicant in his video record of interview, admitted to having participated in the theft with the others, explaining that he saw the money was about to fall out of the slashed plastic bag and so he took it.  He was not the one who bumped into PW2, although he was standing behind her.  Of the $120,000 that was stolen, the 1^st applicant said he had sent $20,000 back to his family. 

17.The 2^nd applicant in a video record of interview, admitted he was at the scene but claimed he did not steal the money.  He said that he was coming from behind but did not know who stole the money.  He said that as the bag was already damaged, he just put his hand into the bag.  He said his friend standing in front of him also saw the damaged bag and could see the cash inside it.  He admitted he was in a group, consisting of himself and three other men, and that a man called “Cheecho” had been responsible for taking the money back to where they were staying in a flat at 183 King’s Road.  He said his three friends, having initially got on the train, promptly got off because it was too full.  They then left the station and continued their journey at street level.  He acknowledged that his friends followed the woman whose money was stolen and stood close to her.

18.The 2^nd applicant said it was his friend called “Juanito”, who had initially spotted PW2 leaving a currency exchange centre, and he had told them that she had cash on her.  He said her bag was already damaged.  They then followed her.  He said he imagined his friends were about to do something, but maintained he did not know they were going to put their hands inside the bag.  He only knew the money was stolen after the group returned to where they were staying at King’s Road.  When they got back to the flat at King’s Road, “Cheecho” divided the money amongst them, with each of them receiving between $20,000 to $30,000.  The 2^nd applicant said he bought some shoes and clothing, which together with the remaining $15,000 to $20,000, he sent back to Chile.[4]

19.The 3^rd applicant, after he was arrested participated in a video record of interview, in which he stated he saw PW2 holding a bag of cash and the bag was already broken with a hole in it.  He said the cash could be readily seen, with some of the money falling out from the bag as PW2 went down to the train platform.  He said he was part of a group of between 4 to 5 men who followed the woman.  The 3^rd applicant said he did not know who had actually taken the money.  After taking the money, they had all got on the train, but one of the men in the group instructed them to get off.  They then took other transport back to where they were staying at King’s Road.  The stolen cash was placed in his backpack.  The 3^rd applicant was given some of the money, which he had spent on food, shoes and clothing, as well as remitting some of the money back to Chile.

20.It was admitted in the summary of facts that the 1^st, 2^nd and 3^rd applicants stole the cash belonging to PW2. 

Charge 3

21.At about 10:43 am on 27 February 2019, police officers started following the group of men as they left where they were staying at King’s Road.  The group took a tram bound for Happy Valley, alighting at the stop at Russell Street and then walked to the Hong Kong Convention and Exhibition Centre, where there was an international jewellery exhibition happening the next day. 

22.On the same day, PW4, who was working as a representative of her jewellery company at the exhibition, left her computer bag with her colleague, Ms Liang Jiemin, (PW5).  She then went off and did some errands leaving her bag with PW5.  At about 11:30 am, PW4 returned and had a chat with her friend.  As she did so her computer bag was behind PW5’s back.  At the time, the group of men, consisting of the three applicants and an unknown South American man, were also present.  The undercover officers, who had them under surveillance, noticed the unknown man leaving the exhibition, along with the others, carrying a black bag.  The group of men then got into a taxi and were stopped by a police officer, SPC47586, immediately outside the exhibition centre.  The four men immediately fled.  Another police officer, SPC54951, intercepted the 1^st applicant, whilst SPC47586 searched the taxi and found inside PW4’s computer bag and the 1^st applicant’s backpack. 

23.The 1^st applicant was brought back to Wan Chai Police Station where he admitted he stole the bag belonging to PW4 and that he did this with others, including a man called “Sergio”.  He further said he did this having taken the opportunity realising the bag was left unattended.

24.The 2^nd applicant was arrested and in his subsequent video record of interview, he stated he resided at 183 King’s Road which was rented by a Chilean who had departed for Japan.  He admitted he saw the theft of PW4’s bag, which he said was a spontaneous theft.  He said that his friend Hugo told him that he took the bag.

25.The 3^rd applicant was stopped and searched near the junction between Salisbury Road and Canton Road, after he had taken the ferry to Tsim Sha Tsui from Hong Kong island in an effort to flee the scene.  In a video record of interview, he said he had come to Hong Kong on his own and “had accompanied some South American people he had met in Hong Kong in stealing”[5]. He said, in relation to PW4’s bag, that he did not personally take the bag and that it was another member of his group.  He said they went to the exhibition centre as a group.  As they saw the bag was unattended, one of them took the bag and he acted as a lookout for his friend.  They then fled the scene when a man came running after them. 

26.It was admitted in the summary of facts that the 1^st, 2^nd and 3^rd applicant, together with a person unknown, stole the property belonging to PW4.

Charge 4

27.The police seized a Renminbi 50 banknote from the 2^nd applicant.  In a video record of interview, he claimed he picked up the banknote in a toilet at a McDonald’s restaurant in Central and did not try to locate the owner or report finding it.

28.It was admitted in the summary of facts that the 2^nd applicant stole the cash of Renminbi 50, the property belonging to another person.

The mitigation

29.The mitigation submitted on behalf of the 1^st applicant was that at the time of the offence he was aged 51 and lived in Santiago, Chile.  This was his first time to Hong Kong.  He sold shoes for a living in Chile.  He had a family consisting of two daughters and a son, between the ages of 18 and 25.  His daughter was studying at university and his son was an unpaid apprentice football player.  Medical reports were submitted showing his son had, since the 1^st applicant had come to Hong Kong, a urinary problem and required the assistance of a catheter.  Reports also showed his girlfriend had a gall bladder problem which required hospitalization and two operations.  It was further submitted that Chile had been recently experiencing widespread social unrest and the 1^St applicant was anxious to return to his family as soon as possible to take care of them. 

30.It was submitted on behalf of the 2^nd applicant that he had come to Hong Kong to take up a job in a restaurant, only to find out, when he got here, he had been duped and there was no job.  This was his first visit to Hong Kong.  He had borrowed the money to come here.  He lived with his daughters, aged 20 and 13, and his girlfriend, and he was the sole bread winner of the family.  The mother of the daughters was a drug addict.  It was impressed upon the Judge, by way of a psychological report, that the 2^nd applicant’s youngest daughter was self-harming and her father’s absence was making the situation worse. 

31.It was submitted on behalf of the 3^rd applicant that he was single with two young children and that he had a clear criminal record in Chile.  He had come to Hong Kong as a tourist and did not know the other members of the group prior to arriving in Hong Kong.  When he arrived in Hong Kong, he met up with a fellow Chilean whom he had been staying with for some ten days prior to his arrest. 

32.It was submitted on behalf of all of the applicants that they had a clear record in Hong Kong but this was completely meaningless given this was their first time in Hong Kong, and soon after they arrived they embarked on a crime spree.

The reasons for sentence

33.In his reasons for sentence, the Judge carried out a comprehensive review of the facts and circumstances of each offence as well as of the mitigation advanced on behalf of each applicant. 

34.The Judge referred to the relevant sentencing authorities, particularly HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and found there were no shortage of aggravating features in this case.  He also referred to HKSAR v Tan Hong Sheng,[6] a case involving a pickpocketing gang from mainland China, in which the Court of Appeal approved the four aggravating features identified by the sentencing judge in that case, namely (1) the offence was committed in a crowded area where the public was at particular risk; (2) the offence was carried out by three accused jointly; (3) there was an international element as the accused committed the offence soon after they arrived in Hong Kong; and (4) the offence was organised, well planned and professional.  The Judge noted that a starting point of 2 years and 6 months’ imprisonment was affirmed by the Court of Appeal in that case, which was similar to the present case.

35.The Judge found the applicants had come to Hong Kong with the intention to steal and were part of a South American syndicate.  He rejected the 2^nd applicant’s claim that he came here to work in a restaurant but was duped.  He found the offences were well organised and premeditated with vulnerable victims being carefully chosen.  He also found that the offences were jointly carried out and there was no reason to differentiate between the roles played by the applicants.

36.In addition, the Judge noted the following aggravating factors.  In respect of Charge 1, a mobile telephone had been stolen, which would have caused the victim a high degree of distress and inconvenience because modern smart telephones contain large amounts of important personal data.  He referred to HKSAR v Liu Lin Feng.[7]  In respect of Charge 2, the victim sustained a substantial loss of $130,740 cash. In respect of Charges 1 to 3, they were committed within a period of seven days.

37.The Judge considered that the only meaningful mitigating factor advanced on behalf of the applicants were their early guilty pleas.  He found nothing in their personal backgrounds or family circumstances that provided any justification to further reduce their sentences. 

38.The Judge found the cumulative effect of the aggravating features were serious enough, on their own, to adopt a higher starting point than that laid down in Ngo Van Huy of 12 to 15 months for a first time offender, with no aggravating features in a case of pickpocketing.

39.Having considered all the matters including the aggravating factors, the Judge adopted starting points of 30 months for Charge 1, 33 months for Charge 2, 30 months for Charge 3 and 3 weeks for Charge 4.  In his reasons for sentence, the Judge provided the following table, which helpfully sets out the respective sentences of the applicants after their one third discount for having pleaded guilty:

Applicant	Charge 1	Charge 2	Charge 3	Charge 4
1st	20 months	22 months	20 months
2nd	20 months	22 months	20 months	2 weeks
3rd		22 months	20 months

40.The Judge then applied the totality principle, and made the appropriate adjustment to the sentence passed on each applicant as follows.

41.As for the 1^st applicant, the sentences for Charge 1 and Charge 3 were made concurrent but consecutive to Charge 2, resulting in a total sentence of 42 months’ imprisonment. 

42.As for the 2^nd applicant, the sentences for Charges 1, 3 and 4 were made concurrent to one another but consecutive to Charge 2, resulting in a total sentence of 42 months’ imprisonment. 

43.As for the 3^rd applicant, 6 months of the sentence for Charge 2 was made concurrent with the sentence for Charge 3, resulting in a total sentence of 36 months’ imprisonment. 

The 1^st applicant’s submission

44.Mr John Marray, for the 1^st applicant, does not take issue with the starting points adopted by the Judge on Charges 1, 2 and 3.  His complaint is that the Judge did not apply the totality principle correctly and hence the total sentence of 42 months’ imprisonment was manifestly excessive for the three charges of theft following guilty pleas.  He argues that the Judge did not adequately take into account the total length of the sentence imposed to avoid the risk of a crushing sentence to the 1^st applicant, and by making the sentence on Charge 2 consecutive to the concurrent sentences of the other offences did not reflect his true culpability and was unfair.  He also argues that because the aggravating factors have been taken into account in respect of the sentence passed for each offence, the 1^st applicant is being doubly punished for these aggravating factors by the consecutiveness of the sentence of charge 2 to the concurrent sentences of Charges 1 and 3.

45.In support of his argument, Mr Marray relies on various statements of principle by Stock VP in HKSAR v Ngai Yiu Ching,[8] who in his judgment addressed the application of the totality principle in general terms but mainly in the context of the “one transaction” rule.

46.Stock VP explained that when dealing with multiple offences arising from an episode of criminal activity, the ultimate overall sentence must reflect the true culpability, although the sentencing judge must, first, pass an appropriate sentence for each individual offence and, second, not punish the offender twice for the same conduct.[9]  He stressed the importance of the totality principle is to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that “the overall effect of sentence is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”[10]

47.Mr Marray also placed reliance on the following comments of Howie J in Cahyadi v R,[11] which were quoted with approval by Stock VP in Ngai Yiu Ching,[12] who stated that when dealing with multiple offences:

“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both..”

48.It is also worth noting that immediately following these quoted comments Stock VP stated:

“27. For the sake of completeness we should refer to the multiple offence scenario that involves offences, different in nature or the same, committed on quite separate occasions. In that situation the court will invariably have concluded that, in principle, it may impose consecutive sentences. But the court still needs to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle. Only by doing so will it be able to arrive at a sentence that is fair to the offender yet also properly reflects the culpability of his conduct.”

49.Mr Marray contends that the Judge, by ordering the sentence on Charge 2 of 22 months to run consecutively to the concurrent sentences of 20 months on Charges 1 and 2, exaggerated the culpability of the 1^st applicant and dealt him a crushing sentence. 

50.Mr Marray also cites two cases which he says demonstrate the total sentence of 42 months’ imprisonment is manifestly excessive. 

51.The first case he cites is HKSAR v Aguilar Garcia Milner Javier,[13] where the defendant was sentenced to 3 years’ imprisonment, having pleaded guilty to 5 charges of theft which occurred over a nine day period.  The sentencing judge in that case sentenced the defendant to 12 months’ imprisonment on each charge.  He ordered that 6 months of the sentence of the second charge was to be served consecutively to the sentence of the first charge.  In respect of the other charges, it was ordered that 6 months of the sentence of each charge be served consecutively to the resulting sentences imposed in respect of the first charge of 12 months.

52.The defendant had been charged with another Peruvian, who were visitors to Hong Kong.  The thefts involved passports, cash, cameras, an iPad, various documents of identification and bank cards.  The total value was in excess of $30,000.  Only some of the property was recovered, and the passports belonging to two of the victims were never recovered.  The defendant made five separate video record of interviews admitting that he participated in the offences.  The sentencing judge found there were several aggravating features.  Most notably, the fact the offences were premeditated and happened over the course of a few days and the two defendants were acting together.  Where the Court of Appeal found the sentencing judge fell into error, however, was in applying the totality principle.  This was because the judge, having adopted a starting point of 3 years’ imprisonment would have, had the case gone to trial, sentenced the defendant to 4½ years’ imprisonment.  Viewed in this way, the Court of Appeal found that the sentence was manifestly excessive and allowed the appeal, reducing the sentenced to 28 months’ imprisonment. 

53.The second case Mr Marray cites is the leave judgment of HKSAR v Lee Lei.[14] Whilst leave was refused, he seeks to rely on the fact that in that case, the applicant, for multiple charges of theft, received a total sentence of 30 months’ imprisonment after the sentencing judge had applied the totality principle.  The case involved a woman who was 59 years old at the time of sentence.  She was charged with 5 charges of theft of various items over a period of one month.  She stole jewellery and fashion items that were of considerable value, for example the jewellery in the fourth and fifth charges were valued at $795,000 and $122,933 respectively.  There were medical reports suggesting the stealing of luxury goods was her way of achieving a sense of satisfaction and emotional relief during times of financial pressure.  The judge ordered the sentences of 12 months for the fourth and fifth charges be served concurrently with each other, and the sentences of 6 months’ imprisonment in respect of first, second and third charges be served consecutively.  Thus making a total sentence of 30 months’ imprisonment. 

54.The difficulty in referring to these two cases is that there are equally other cases where higher sentences have been imposed.  This is because facts and circumstances differ from case to case.  It is for this reason that a comparison between sentences imposed in other cases will be of little, if any, assistance.  The issue is, and always is, whether the sentencing court in passing sentence on an offender has properly applied the relevant sentencing guidelines and principles to the circumstances of the offence and the offender, and has not made a material error, which has resulted in the sentence being wrong in principle or manifestly excessive.

The 2^nd applicant’s submission

55.Mr James Sherry, for the 2^nd applicant, unlike Mr Marray, does take issue with the starting points adopted by the Judge on Charges 1, 2 and 3.  By his grounds of appeal, he raises two complaints.  First, the Judge failed to identify the starting point he considered appropriate in relation to each charge before going on to consider the aggravating factors that warranted an enhancement of the sentence.  Secondly, the sentences imposed on the individual charges and the overall sentence were manifestly excessive.

56.Mr Sherry submits that the Judge should have adopted a starting point of between 12 and 15 months as provided for in HKSAR v Chiu Suet Yee, Angel.[15]Hence, the starting points for Charges 1, 2 and 3 were manifestly excessive and wrong in principle. 

57.In respect of Charge 1, Mr Sherry submits the starting point should have been 21 months’ imprisonment, as opposed to 30 months.  Mr Sherry arrives at this figure in the following way.  The initial starting point should have been 12 months.  There should have been enhancements of 3 months for the 2^nd applicant collaborating with the 1^st applicant; 3 months for the fact that the theft was committed in a public place; and 3 months for the fact that the theft involved a mobile telephone.  

58.Mr Sherry applies the same logic in dealing with Charges 2 and 3. 

59.He submits that the starting point for Charge 2 should have been a term of imprisonment of 24 months, not 33 months.  He contends that the initial starting point should have been 15 months, given that $130,740 was stolen.  There should have been enhancements of 3 months for the slashing of the victim’s bag; 3 months for the 2^nd applicant collaborating with others; and 3 months for the fact that the theft was committed in a public place, namely the MTR station. 

60.He submits that the starting point for Charge 3 should have been a term of imprisonment of 18 months, not 30 months.  He contends that an initial starting point of 12 months should have been adopted as there were no weapons used and there was nothing unusual in the circumstances of the offence.  There should have been enhancements of 3 months for the 2^nd applicant collaborating with others; and 3 months for the fact that the theft was committed in a public place.  He makes no reference to the fact that the theft involved a personal computer which is in the same category as a mobile telephone.

61.Mr Sherry contends that, after allowing for the one third discount for the guilty pleas, the resultant sentences should be 14 months for Charge 1, 16 months for Charge 2, and 12 months for Charge 3.  He makes no submission as to the overall sentence after applying the totality principle. 

62.Mr Sherry also complains about the sentence passed on Charge 4, which he submits was trivial and represented only a small loss to the owner.  He argues that the sentence of 2 weeks’ imprisonment was therefore manifestly excessive.  He accepted during the course of oral submission that because the sentence was made concurrent with the other sentences it had no impact on the ultimate sentence imposed on the 2^nd applicant.

The 3^rd applicant’s submission

63.Mr Richard Donald, for the 3^rd applicant, complains that the sentences imposed on Charges 2 and 3 and the overall sentence were manifestly excessive and that the Judge failed to properly apply the totality principle when assessing the 3^rd applicant’s culpability in these offences.  Where appropriate, he adopts the arguments advanced by the other two counsel.

Discussion

64.It has been repeatedly said by this Court that the offence of pickpocketing is a serious and grievous offence that not only causes financial loss to the victim but also grave inconvenience and distress. There will be different levels of offending for this type offence and much will depend upon the particular facts and circumstances of the case under consideration.  One particular factor that aggravates this offence most seriously is the involvement of an international gang of thieves that come to Hong Kong in order to steal.  Where multiple offending occurs, it will be necessary at the end of the sentencing process to make an overall assessment of the criminality involved so as to ensure that the total sentence is just and appropriate.

65.In assessing sentence, the Judge had reference to the guidelines for pickpocketing offences laid down in Ngo Van Huy, where Ma CJHC (as he then was) stated:

“9. In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter):

(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes the offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include:

(a) The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim): see R v Vy Van Kien & Another [1991] 1 HKLR 422.

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher. Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for: see HKSAR v Rang Zhi Tai and Another, (unreported, HKMA 7/1999, [1999] HKEC 1062), Court of First Instance; HKSAR v Ho Minh Cong, (unreported, HKMA 547/1999), Court of First Instance. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed: see R v Saldana Alca Jose and Another (unreported, CACC 655/1996). In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing:

‘We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.’

(d) Where the accused is a repeat offender or, worse still, a persistent one: see R v Chiang Pok Wing (unrep., HCMA No 589 of 1996, [1996] HKLY 613), Court of First Instance; HKSAR v Huynh Van Dung (unrep., HCMA No 270 of 2001, [2001] HKEC 891), Court of First Instance.”

66.How these guidelines should be applied was briefly explained by this Court in HKSAR v Chiu Suet Yee, Angel, as follows:

“10. A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point) a sentencing court should commence.

11. In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors. Such matters as the value of the property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences. Each case will be fact sensitive and considerable allowance should be given to the exercise of the sentencing judge’s discretion.

12. In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.”

67.The submissions of the applicants criticising the starting points adopted by the Judge completely ignore the comments of the Court of Appeal in Ngo Van Huy that organised crimes involving group pickpocketing, even without international ramifications, might attract a starting point of at least 2½ years’ imprisonment.[16]  Where there is an international dimension, the Court of Appeal has stressed that this is “a most serious aggravating factor”.[17]

68.The sentences imposed upon the applicants were stern but it cannot be said that they were wrong in principle or manifestly excessive.  There were good reasons why the applicants received the sentences that they did.  First, the three applicants were members of an international gang of thieves who travelled all the way from Chile to Hong Kong with the clear intention of coming here to steal.  Secondly, they were well organised, and carried out their crimes in a sophisticated and professional manner.  Thirdly, they operated in relatively crowded places where the public were at particular risk and carefully chose their victims. Fourthly, they committed multiple offences in a relatively short period, which involved stealing property of a personal nature or of considerable value, such as a mobile telephone, credit cards and travel documents in Charge 1, cash in the sum of $130,740 in Charge 2, and a computer in Charge 3.

69.The offence in Charge 2 was particularly serious, and would have warranted a starting point higher than the one adopted by the Judge.  The applicants together with another person had obviously targeted the victim, a lone woman, who had obtained a large sum of cash, which she carried in a plastic bag.  They followed her to the MTR station where they stole the cash from the victim in an orchestrated and professional manner.  It was an admitted fact that the bag she was carrying had been “slashed” and the cash had gone missing.  In other words, a weapon was used to slash open the bag.  None of the cash that was stolen was recovered.  The applicants admitted that the share of the cash they each received, they spent buying some goods, and together with the remaining money, they sent back to Chile.[18] 

70.Mr Sherry in arguing that the notional starting points adopted by the Judge were too high, has taken a fairly restricted view of the criminality involved and has left out a number of aggravating factors that added to the gravity of the offending.  The starting points that he adopted and the enhancements for the aggravating factors that he allowed for were on the low side.  In my view, the notional starting points adopted by the Judge could have been higher, particularly for the offence in Charge 2, which was not your typical pickpocketing case.  It clearly stood apart from the other two offences, and added significantly to the overall criminality involved. 

71.Mr Marray argues that the total sentence of 42 months’ imprisonment imposed on the 1^st applicant was manifestly excessive because the sentence on Charge 2 was made consecutive to the concurrent sentences on Charges 1 and 3.  When you consider that you are dealing with three offences that occurred in a relatively short period of time, each with its own brand of criminality, particularly in the case of Charge 2, there is going to be a degree of consecutiveness to the sentences to reflect the overall criminality involved.  It should be noted that the applicants received the benefit of concurrent sentences in relation to Charges 1 and 3 when it was open to the Judge to have made them partially consecutive, bearing in mind that Charge 3 was the third offence for the 1^st and 2^nd applicants and the second offence for the 3^rd applicant.  It should be stressed that the severity of a sentence does not alone offend against totality.  This was explained by this Court in HKSAR v Lam See Chung, Stephen:[19]

“The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him. It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”[20] (Citation omitted)

72.Mr Marray also argues that by making the sentence on Charge 2 consecutive, the aggravating factors of the international element, the joint enterprise and organisation have been effectively taken into account twice.  There is no question that these aggravating factors were present in relation to each offence and were quite rightly taken into account in order to assess the gravity of the offence and determine an appropriate notional starting point.  There were also other aggravating factors that would have had a bearing on the specific offence, such as the theft of a mobile telephone in Charge 1, the use of a weapon to slash the bag and the stealing of a large quantity of cash in Charge 2, and the stealing of a personal computer in Charge 3.  There was also the fact that the applicants committed multiple offences which would increasingly add to the aggravation of each successive offence after the initial offence.

73.In my view, the notional starting points of 30 months’ imprisonment on each of Charges 1 and 3 were within the appropriate range of penalty for the circumstances of each case.  Charge 1 involved the stealing from a female personal items, namely a mobile telephone and identity documents, which would have caused much inconvenience and distress to her. Charge 3 involved stealing from a female a personal computer, which would have also caused much inconvenience and distress to her, and this was the third offence committed by the 1^st and 2^nd applicants and the second offence by the 3^rd applicant.  Charge 2 was a particularly serious offence, which should have attracted a higher notional starting point, within the range of 36 to 42 months’ imprisonment.  After applying the totality principle, the Judge assessed the overall criminality against the 1^st and 2^nd applicants as warranting a total sentence of 42 months’ imprisonment, and against the 3^rd applicant a total sentence of 36 months’ imprisonment.  The Judge obviously took into account that there was an additional offence against the 1^st and 2^nd applicants and made an appropriate adjustment to address this factor.

74.The totality principle invests the sentencing court with a broad discretion to ensure that the final sentence is just and appropriate in the circumstances of the offence and of the offender.  It seems to me that the Judge has taken a step back and made an entirely proper assessment of the overall culpability of the criminal conduct for the purpose of applying the totality principle.  I agree with the resultant sentences that have been imposed by the Judge, bearing in mind the application of the totality principle to the enhancements for the aggravating factors as well as to the overall sentence.  In any event, I consider the notional starting point adopted on Charge 2 to be on the low side and could have been higher given the overall culpability of the applicants.  It is for this reason that I do not see that the ultimate sentences imposed on the applicants will be interfered with by the Court of Appeal.

Conclusion

75.For the reasons I have given, I do not consider the applicants have reasonably arguable grounds of appeal against their respective sentences.  They simply have no cause for complaint for the sentence that has been imposed on each of them, and could very well have received a sentence of greater severity.

76.The applicants are reminded of their right to renew their respective applications for leave to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their respective appeals, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

Miss Rosa LO, SPP of Department of Justice, for the respondent

Mr John Patrick Marray, instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the 1^st applicant

Mr James Sherry, instructed by M.C.A. Lai Solicitors LLP, assigned by the Director of Legal Aid, for the 2^nd applicant

Mr Richard David Donald, instructed by John M Pickavant & Co, assigned by the Director of Legal Aid, for the 3^rd applicant