HKSAR v. Chan Fei-lung

CACC 134/2021

[2022] HKCA 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 134 OF 2021

(ON APPEAL FROM DCCC NO. 1118 OF 2020)

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Before:  Hon Anthea Pang JA in Court

Date of Hearing:  5 May 2022

Date of Judgment:  5 May 2022

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J U D G M E N T

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1.Jointly charged with one Chang Kwong-yiu (“D2”), the applicant appeared in the District Court and pleaded guilty before HH Judge K Lo (“the judge”) to one count of “theft”.[1]

2.On 26 April 2021, the judge sentenced the applicant to 22 months’ imprisonment, 7 months of which were ordered to run concurrently with the sentence of 23 months which the applicant was serving in relation to another “theft” case (DCCC 397/2020^[2]). 

3.The applicant now applies for leave to appeal against his sentence out of time. 

Summary of Facts

4.This is a “pickpocketing” case.  On 24 September 2020, a woman police constable (“PW2”) saw the applicant and D2 acting furtively inside Pei Ho Street Market.  Later, they approached a lady aged 73 (“PW1”) from behind and stood by her side, swapping positions from time to time.  Having waited for a while, the applicant quickly got close to PW1 and stole a wallet from her left front pocket.  He then walked away hurriedly with D2. 

5.PW2 and another officer intercepted the applicant and D2 respectively outside the Market.  Upon search, PW1’s wallet was found on the applicant.  It contained $353.40 cash, one elderly Octopus card, some keys and some membership cards. 

6.Under caution, the applicant admitted the offence and said he had no money, asking for a chance. 

The applicant’s mitigation

7.The applicant was 60 years of age.  He was unemployed and lived on CSSA in the amount of HK$2,000 per month. It was submitted that the applicant committed the present offence because of financial difficulties. 

8.The applicant had 31 previous records involving convictions of 38 charges (25 of them were dishonesty related, including 14 pickpocketing convictions), dating back to 1981. The applicant was last sentenced on 7 January 2021 to a total of 23 months’ imprisonment for attempted theft and theft in DCCC 397/2020.  On that occasion, the sentencing judge also activated 3 months out of a 4-month suspended term in respect of a non-theft related offence and ordered that to run consecutively to the sentence imposed in DCCC 397/2020. 

9.Counsel for the applicant accepted that a term of 12 to 15 months after trial would only be appropriate for a first-time offender: HKSAR v Dang Van Tuan^[3].  It was also accepted that in respect of the applicant’s similar offences in DCCC 397/2020 which took place on 8 February 2020 (i.e. seven months prior to the present offence), a similar modus operandi was employed and that the applicant was acting in concert with another. 

10.In view of the sentence passed in DCCC 397/2020, counsel invited the judge to apply the totality principle by imposing, in this case, a “largely concurrent sentence”. 

The judge’s Reasons for Sentence

11.Having considered the facts of the case and the applicant’s mitigation, the judge came to the view that the applicant was an “incorrigible recidivist pickpocketer” and, by repeatedly committing pickpocketing offences preying on elderly people, the applicant was “a menace and a threat to the society.”

12.When deciding on the starting point, the judge referred to the case of HKSAR v Ng Ah Shan^[4] but enhanced the initial starting point of 15 months by 9 months for the applicant’s poor criminal record.  Since the applicant acted in concert with D2, the starting point was further enhanced to 29 months.  Finally, as the applicant committed the present offence whilst he was on bail for DCCC 397/2020, there was another enhancement of 4 months.  In the end, the overall starting point was one of 33 months. 

13.The applicant was given the full one-third discount for his guilty plea and was sentenced to 22 months. 

14.The judge then considered the totality principle and ordered 7 months to run concurrently with the term in DCCC 397/2020. 

The applicant’s explanation for delay

15.The applicant was nearly one-month late in filing his Form XI dated 22 June 2021.  In his affirmation filed on 6 January 2022, the applicant attributed the delay to the inaction of his fellow inmate, with whom he had entrusted the original Form XI for filing but he later found out that the inmate had misplaced his form.  Further, the applicant said that his legal aid application was only granted recently. 

The applicant’s submissions

16.Mr Bruce Tse, who appears for the applicant in the present application but not the proceedings below, argues that the applicant’s delay, being about 30 days, in filing the Notice was not substantial and he has given cogent reasons.  Mr Tse submits that, in any event, the applicant has an arguable case which the court should hear notwithstanding his delay: HKSAR v Chan Kam Po^[5]; HKSAR v Muhammad Haji & Anor^[6].

17.In respect of the grounds of appeal, Mr Tse complains that the judge failed to correctly apply the totality principle in the following respects:

(1)  when passing the final sentence, the judge did not approach it as if the present case and DCCC 397/2020 were heard together before her: The Queen v Tong Hoi Fung^[7];

(2)  the judge erred in not indicating the global starting point of the offences in the two sets of proceedings: R v Tsang Chiu Man^[8]; and

(3)  when ordering 15 months in the present case to run consecutively to the term in DCCC 397/2020, the judge had, in effect, passed a total of 38 months’ imprisonment for the three offences in the two sets of proceedings.  Mr Tse argues that this is equivalent to a notional starting point of 57 months and that whilst the applicant does admittedly have a poor criminal record, it is still difficult to see how the judge could have justly arrived at a notional starting point four times the normal starting point of 12 to 15 months for a first-time offender.  As a result, it is submitted that the judge evidently failed to give proper consideration to the totality principle, if at all. 

18.Ground 2 is the general complaint that the overall sentence is manifestly excessive.  Mr Tse refers to HKSAR v Dang Van Tuan^[9], HKSAR v Chan Mei Yee Carman^[10] and HKSAR v Lam Yee Fu^[11], in which the original sentences were reduced on appeal as the court considered them manifestly excessive even for recidivist pickpocketers, to suggest that the current sentence is manifestly excessive in all the circumstances of this case. 

The respondent’s submissions

19.Mr Beney Wong, for the respondent, submits that the applicant did not provide any valid reason for the delay, and that, in any event, the applicant fails to show any reasonable chance of success. 

20.In reply to Ground 1, Mr Wong says that although the judge did not identify the global starting point, the omission is not fatal as, ultimately, the question is whether the overall sentence of 38 months, or the overall starting point of 57 months, is wrong in principle or manifestly excessive. 

21.Mr Wong suggests that it is not because the offences were separate in time and objective, targeting different victims; and that each clearly added to the culpability of the other.  As such, a substantially consecutive sentence is warranted: HKSAR v Brian Alfred Hall^[12].

22.Of Ground 2, Mr Wong argues that the applicant has failed to demonstrate how the 22-month sentence for the present offence is manifestly excessive with reference to the authorities relied on by the applicant as the starting point considered appropriate for each of those defendants was one of 30 to 36 months. 

Discussion

23.On the facts of this case and with the various undisputed aggravating factors identified by the judge, I agree with the respondent that a starting point of 33 months, per se, may not be manifestly excessive.  However, for the following reasons, it seems to me reasonably arguable that the judge had not considered the proper totality by ordering a largely consecutive sentence, which resulted in an overall term of 38 months for the three offences of pickpocketing. 

24.Firstly, a term of 38 months would represent a notional global starting point of 57 months for the three offences in the two sets of proceedings.  This, as submitted by the applicant, was almost 4 times the appropriate starting point for a first-time offender.  While it is clear that the applicant is a recidivist and that he had acted in concert with another and had committed the present offence while on bail, there was no suggestion that the offences involved a huge crime syndicate or that highly sophisticated means were employed.  Therefore, I consider that the notional starting point of 57 months for the three offences may arguably be the result of the judge not having properly addressed the question of totality. 

25.Further, on a reading of the reasons for sentence in DCCC 397/2020, one would note that the judge in that case, when setting the starting point, had also taken into account aggravating factors similar to those addressed by the judge in the present case.  In the circumstances, whether the judge had appropriately dealt with the overall totality by ordering 15 months of the 22-month term to run consecutively and whether the final sentence is manifestly excessive would, in my judgment, merit further consideration. 

Conclusion

26.Although the applicant’s reasons for the delay are not impressive in light of the foregoing, the applicant is granted an extension of time to file a notice to apply for leave to appeal against sentence and I grant him leave on the two grounds advanced. 

Mr Beney Wong, SADPP, of the Department of Justice, for the Respondent

Mr Bruce C H Tse, instructed by M/s Boase Cohen & Collins, assigned by the Director of Legal Aid, for the Applicant