HKSAR v. Au Kin Wah (also known as Au Wa and Au Kin Wa)

CACC 148/2021

[2021] HKCA 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 148 OF 2021

(ON APPEAL FROM DCCC NO 346 OF 2021)

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Before:  Hon Zervos JA in Court

Date of Hearing:  26 November 2021

Date of Judgment: 26 November 2021

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J U D G M E N T

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1.The applicant applies for leave to appeal against his sentence of 18 months’ imprisonment, following his conviction on his own plea of one charge of theft before District Court Judge Casewell (the judge). He complains about the quantum of the enhancement to his sentence by the judge for aggravating factors.

2.On 19 February 2021, the applicant was seen at a market stall taking a mobile telephone from the pocket of a person.  He was intercepted by a police officer who retrieved the mobile telephone from his possession.  He admitted stealing the mobile telephone. 

3.At the time of sentencing, the applicant was 63 years of age.  It was submitted on his behalf that he was cooperative with the police, admitting his guilt immediately upon his apprehension and entering a plea of guilty to the offence at the earliest opportunity.

4.The judge adopted a starting point of 15 months’ imprisonment which he enhanced by 3 months for the act of pickpocketing in a crowded and public area and 9 months for his poor criminal record.  The notional starting point of 27 months’ imprisonment was reduced by one third for his timely guilty plea to 18 months’ imprisonment.

5.The adoption by the judge of a starting point of 15 months’ imprisonment cannot be criticised and was consistent with the range of penalty imposed for an offender who has committed the crime of pickpocketing: HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  It has been held that a starting point of 15 months’ imprisonment was appropriate for theft of a mobile telephone: HKSAR v Liu Lin Feng, unrep., CACC206/2011, 21 February 2012.  A mobile telephone contains large amounts of data of importance to the owner and this would cause a high degree of distress and inconvenience if it was stolen.  Nor can the judge be criticised for his determination of the two aggravating factors and the enhancement he imposed for each one: 3 months because the victim was targeted in a crowded and public place, and a further 9 months for the applicant’s persistent reoffending of this type of offence.  The applicant has an appalling criminal record with 47 previous convictions since 1977, consisting of 33 convictions for theft or pickpocketing.  The applicant was last sentenced in April 2020 to 14 months’ imprisonment for pickpocketing and possession of a dangerous drug.  He was discharged from prison on 27 October 2020 and committed the present offence some 4 months later, on 19 February 2021.  The judge was quite correct in recognising that the applicant was in need of additional deterrence for his constant flouting of the law.  See HKSAR v Wong Kang Sun [2014] 1 HKLRD 622.

6.The applicant submits that the enhancements should not have exceeded one third of the starting point.  The issue is whether the enhancements were justified, taking into account the totality principle. In my view, the total enhancements were justified and appropriate in the circumstances of this case.  I find no fault with the resultant sentence.  There is no merit in the applicant’s complaint and I refuse him leave to appeal against his sentence.

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

Ms Cherry Ho, SPP, of the Department of Justice, for the respondent

The applicant appears in person