HKSAR v. Noval Rose Paz

HCMA000180/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 180/98

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Coram: The Hon. Mr. Justice Hartmann in Court

Date of Hearing: 1 May 1998

Date of Judgment: 1 May 1998

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J U D G M E N T

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1. The Appellant in this matter was convicted after trial of one count of attempted theft. The background facts are these. On the afternoon of 20th January of this year, two police officers in plainclothes were on duty in Central. As usual, it was crowded. The police officers saw two Filipina ladies, one of them the Appellant, and were drawn to the fact that they appeared to be showing an unusual interest in handbags carried by other persons. As a result of this, the officers decided to shadow the Appellant and her companion. In the area of Theatre Lane, the two officers saw the Appellant and her companion following a Japanese lady and a male companion. The Appellant, according to the police officers, got to within one foot of the Japanese lady who was carrying a rucksack on her back. The officers saw the Appellant extend her hand and use it to unbuckle the rucksack. They then saw the Appellant put her hand inside the rucksack. However, Appellant pulled her hand out when her companion whistled; the whistle being an apparent signal.

2. Not surprisingly, the two officers gave slightly different accounts of what they saw. The learned Magistrate took this into account, bearing in mind that they were at different angles and would have had their view obscured from time to time by pedestrians.

3. There was no question of any mistaken identity as the Appellant herself admits that she was on the street at that time and that she did in fact touch the rucksack. Before the Magistrate, she said, however, that she was looking for a lost earring. She denied untying the rucksack or attempting to reach into it. At one stage she told the Magistrate that she was feeling cold, it being a winter month in Hong Kong, and that she was doing nothing more than crossing her hands when she accidentally touched the rucksack. She said that she was in Hong Kong to buy T-shirts and she was going about her lawful business with her colleague.

4. The Appellant today has put forward a number of grounds to show that the Magistrate was wrong in his findings. She has said that the Japanese lady herself did not know that her rucksack was being tampered with and made no complaint. This is not surprising. The art of pickpocketing is to remove somebody's belongings without them knowing. An item such as a rucksack is a bulky item which can be tampered with without it being known to the person carrying the rucksack.

5. The Appellant has spoken of the inconsistencies in the evidence. But these were considered by the Magistrate who took into account that these officers followed the Appellant for sometime, keeping her under view and that this was clearly, on what the police officers saw, a joint enterprise. I can find nothing in the evidence or in the Statement of Findings to indicate that the conviction was in any way unsafe. The appeal against conviction is dismissed.

6. The Appellant, however, bases her appeal essentially on what she believes to be a sentence that is too severe. She has said that all she wants to do is return to the Philippines so that she can be with her family and her children. She has undertaken never to return to Hong Kong.

7. There are a number of authorities on the appropriate sentence for attempted theft which involves what is commonly called pickpocketing. Our courts consider the proper starting point to be 15 months. The Appellant in this matter was convicted after trial. She was not therefore entitled to any benefit by way of discount for a plea of guilty. The Magistrate, however, did take into account that she had a clear record (in Hong Kong at least) and he gave a reduction of one month for that.

8. In the circumstances, I cannot say that the sentence imposed was manifestly excessive or wrong in principle. The appeal is dismissed.

Representation:

Mr. Joseph To, S.G.C. for Director of Public Prosecutions

Noval Rose Paz, Appellant, in person