HKSAR v. Ngo Van Huy

CACC107/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2004

(ON APPEAL FROM DCCC NO. 63 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Cheung JJA in Court

Date of Hearing  : 7 September 2004

Date of Handing Down Judgment  : 28 September 2004

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 18 February 2004, the Appellant pleaded guilty in the District Court to a theft charge under section 9 of the Theft Ordinance, Cap.210.  The same day, H H Judge Line sentenced him to 30 months’ imprisonment for reasons which we will address below.  Leave to appeal against sentence was granted by Cheung JA on 1 June 2004.

2.The theft charge related to a pickpocketing incident on 7 December 2003.  At 7:20 pm that day, as a woman was crossing the road at the junction of Argyle Street and Sai Yeung Choi Street in Mongkok, the Appellant took the victim’s mobile telephone from her jacket pocket.  Two plainclothes police officers saw the incident and arrested the Appellant.  The mobile telephone was apparently valued at $3,680.

3.The Appellant has a long list of previous convictions.  It is quite an appalling one.  Since 1989, he has been before the Magistrates Courts on 27 occasions in relation to some 35 offences.  Of these offences, 17 have been for theft or attempted theft.  Others have included assault, contempt of court, unlawful possession of dutiable goods, possession of dangerous drugs and unlawful detention of another person.  The types of sentences he has received for the theft related offences include prison sentences ranging from 3 months to 18 months.  Also striking in this context is the fact that he is still aged only 34 and although his previous convictions have spanned the last 15 years, he has been convicted for an offence on each of those years.  This year is no exception.  The Appellant is clearly a habitual criminal and the sentences hitherto imposed on him have had little or no deterrent effect.

4.In sentencing the Appellant to a term of imprisonment of 30 months, the Judge said as follows : -

“5.          Your record demonstrates that, given the sentences that have been passed upon you, you judge it worth it to take the risk of being caught to carry out your professional crime.  Put bluntly, you make the assessment that it is worthwhile running the risk of being caught.  Even accepting the figure that your solicitor puts on it – doubtless on your instructions – that you would have got $500 for the phone, it demonstrates that there is a ready market for the sort of goods that are stolen by pickporkets in places like this.

6.           I reject the idea that need drove you to crime.

7.           It also happens that this sort of crime has dramatically increased of late.  By agreement, I have two statements from Chief Inspector Grove before me, and for Hong Kong generally, the figures for 2001 were 717 similar cases; for 2002, 859; for 2003, 1681; and the trend is continuing upwards in January of this year.

8.           In a crowded place like Hong Kong, where people inevitably get jostled in busy places on street corners such as the one we have here, it is an ideal opportunity for pickpockets to ply their trade, and it has got to stop or be made so expensive that it will hurt more than it is hurting now.

9.           In my judgment, for someone who is a professional pickpocket with some previous convictions – who is not a stranger, in other words, to pickpocketing with a clear record – a sentence in these circumstances on a plea of guilty of 18 months would be about right.  That would give a starting point after trial of some 27 months.

10.         Your record demonstrates a greater aggravation than just not being a stranger to pickpocketing.  You are a persistent pickpocket who will not be deterred by the sentences that have been passed upon you, and that aggravates this present offence before me significantly.

11.         To reflect that, I have increased the sentence by a further 6 months.  That will give a term of 2 years’ imprisonment.

12.         Your persistence in crime is a separate aggravating factor from the further aggravation that the crime is prevalent and growing.

13.         In the circumstances of this case, I judge a further term of 6 months should be added to reflect that aggravation of prevalence.

14.         It gives the sentence of 30 months that I have passed.”

5.It can thus be seen that the Judge used the following methodology : -

(1)     The Judge took as a starting point a sentence of 27 months.  This was said to apply to someone who was a professional pickpocket with “some” previous convictions.  By “professional pickpocket”, we assume the Judge meant a person who, in his words, was not a stranger to pickpocketing.  This starting point was reduced to 18 months on account of the guilty plea.

(2)     Next, he added 6 months to the 18 months to take into account the Appellant’s poor record of previous convictions.

(3)     Finally, he added another 6 months by reason of the prevalence of the crime of theft by pickpocketing.  The Judge had been provided by the police with statistics relating to the increased incidence of pickpocketing in Hong Kong.  The addition of 6 months to the 24 months already imposed, represented a 25% increase which the Judge said he was able to impose by using either his Common Law powers or the jurisdiction under section 27 of the Organized and Serious Crimes Ordinance, Cap.455 (“OSCO”) (see here in particular sections 27(2)(c) and 27(11)).  By Common Law powers, the Judge was simply referring to his normal sentencing powers as distinct from any special sentencing powers such as those found in OSCO.

(4)     The Judge said he intended by this sentence to send a clear message to pickpockets.  In other words, the deterrent element was very much apparent in his mind.  He said, in an important passage : -

“16.   But my concern is that this District Court sends a firm message to the pickpockets plying their trade in Hong Kong that if you come here, you face 30 months on a plea, and these shades of distinctions between one or two men, how many convictions and the like, do not really matter.  It will be one consistent message that we send, and it should be a hard one.”

6.The same statistics that were before the Judge were also placed before us.  They show an alarming increase in this type of theft over the past 3 years.  In 2001, the total number of reported cases of pickpocketing was 717.  The next year, this had increased by 19.8% to 859.  In 2003, the figure had become 1,681, an increase of 95.7% from the previous year.  The figure for January this year was 255 reported cases; this is suggestive of yet another further increase in trend for this crime.  We shall return to this aspect presently.

7.Mr Kevin Chan for the Appellant submitted that the overall sentence of 30 months was manifestly excessive.  He relied essentially on the following points : -

(1)     The starting point of 27 months adopted by the Judge was excessive.  On the basis of the currently applicable sentencing authorities, the starting point after trial for pickpocketing offences was 12 to 15 months : see R v Vy Van Kien and Another [1991] 1 HKLR 422.  In that case, Penlington JA (sitting as an additional judge of the High Court) said at 427 :

“Each case must always be treated on its own facts and the circumstances of each offence and offender will always vary.  However from a consideration of the relevant authorities it has been accepted that pickpocketing has become prevalent in Hong Kong and, if a sentence of imprisonment is called for, a starting point of 12-15 months after trial is correct.  This should be increased if there are aggravating factors such as the use of a weapon, like a razor-blade, or if the offence is committed in a place where the public, though no fault of its own, is at risk.  This would include all forms of public transport and such crowded places as the racecourses.  Another aggravating factor which would certainly call for a substantial increase in sentence would be evidence that the offender was acting in concert with others in a well organized gang operation.”

(2)     The said starting point of 12-15 months could, he accepted, be increased where there existed aggravating features, and cases were cited to us in which a starting point had been increased to 18 months on account of aggravating features.  Accordingly, it was submitted by Mr Chan that the appropriate starting point in the present case, given the Appellant’s previous record, should only be between 15 and 18 months.  No other aggravating features existed in the present case to justify increasing the starting point to 27 months.

(3)     Next, Mr Chan submitted that the Judge was wrong to add another 6 months on account of the Appellant’s previous convictions when this had already been taken into account in the increase in starting point to 27 months.  There was therefore an element of double counting here.

(4)     As to the enhancement to the sentence of a further 6 months on account of prevalence, it was submitted that this was unnecessary given that the guideline sentence of 12-15 months stated in Vy Van Kien already took into account prevalence.

(5)     In any event, it was submitted that the Judge had erred in the way he dealt with the 1/3 discount on account of the plea of guilty.  It will be recalled that the Judge took as the initial starting point a sentence of 27 months and applied to this the 1/3 discount, reducing it to 18 months.  He then added the two 6-month increases by reason of the Appellant’s previous record and the enhancement for the increased prevalence in the crime.  Mr Chan submitted that the 1/3 discount should have applied to the two 6-month increases as well.

8.For the Respondent, Mr Kevin Zervos, SC submitted that the Judge was entitled, indeed correct, to take into account the various factors he did in arriving at an overall sentence of 30 months.  Irrespective of the methodology used by the Judge (which was legitimate, he said), the sentence of 30 months was, in his words, “not a day too long”.  Mr Zervos drew our attention to 4 specific aggravating features, namely, the professional nature of the offence, the location where the offence took place being a crowded street in Mongkok in the evening, the victim being a female on her own and the fact that the Appellant was a persistent offender.

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 this 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 Vy Van Kien.

(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, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 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, 19 August 1997.  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 2 1/2 years’ imprisonment”.

(d)   Where the accused is a repeat offender or, worse still, a persistent one : - see R v Chiang Pok Wing, unreported, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.

(5)   We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature.  It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences.  The passage of the judgment of Penlington JA in Vy Van Kien at 427 C-D provides an example of this.  Rather, the accused would simply not receive any discount from which a person of clear record might benefit.  This has now changed.  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 [1998] 2 HKLRD 830, at 833-4.  Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence : - see Chan Pui-chi at 833 F-I, referring to R v Billam & Others (1986) 82 Cr App R 347.

(6)   Where, such as in the present case, an application is made to enhance the sentence under section 27 of OSCO by reason of the increased prevalence of the crime of theft by pickpocketing, it will, where the prevalence is proved, be appropriate for the court to enhance sentence.  As we have observed above, this particular form of theft can properly be regarded as a serious offence and as a matter of public policy, a meaningful and deterrent sentence should be imposed.  Where it has become increasingly prevalent, an enhancement of the sentence is therefore entirely appropriate.  In this particular case, the figures we have seen show an alarming increase.  The Judge ordered an enhancement of 25% (no doubt as this was the figure suggested by Government Counsel who appeared before him), but the figures available to us indicate that a greater increase is justified.  In our view, enhancing the sentence by 1/3 would be appropriate.

10.In applying these guidelines and principles to the present case, and accepting there has admittedly been a certain amount of double counting in the sentence imposed by the Judge, we are of the view that the correct sentence for the Appellant is 24 months’ imprisonment : -

(1)     The starting point is 15 months.  The circumstances of the theft in the present case puts it at the higher end of the range.

(2)     From that starting point there must, we feel, be a substantial increase on account of the Appellant’s appalling previous record for theft.  We have already in paragraph 3 above set out the more notable features of this.  The need for a deterrent sentence for this particular person as well as the protection of society dictates that, notwithstanding the fact that what was involved in this case was the theft of a mobile telephone worth $3,680, there should be added another 9 months.

(3)     There also exists the aggravating feature that the offence was committed in a crowded area.  The junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening.  We would therefore add another 3 months to the sentence.

(4)     So far, the sentence for the Appellant comes to 27 months.  With 1/3 discount for the plea of guilty, this becomes 18 months.  It is at this stage (that is, after a discount has been given on account of the plea) that any enhancement under OSCO should be made : - see HKSAR v Tam Wai Pio [1998] 4 HKC 291, at 298.  In other words, if any enhancement is to be made, it should be made at the final stage of the assessment.

(5)     In the present case, as we have stated above, we believe the correct figure for enhancement under OSCO is 1/3.  This brings the overall sentence for the Appellant to 24 months.

11.For the above reasons, we allow the appeal and reduce the sentence of the Appellant from 30 months to one of 24 months.

Mr Kevin Chan, instructed by Messrs Au, Thong & Tsang for the Appellant

Mr Kevin P Zervos, SC and Mr Norton Pang of the Department of Justice for the Respondent/HKSAR