HKSAR v. Wong Kai Chun

CACC 377/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 377 OF 2004

(ON APPEAL FROM DCCC NO. 761 OF 2004)

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BETWEEN

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Before : Hon Stock JA in Court

Dates of Hearing : 9 December 2004

Date of Judgment : 9 December 2004

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J U D G M E N T

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Hon Stock JA:

1.This applicant pleaded guilty on 21 August 2004 in the District Court to a series of pickpocketing offences which occurred on the same day, namely, 8 June 2004.  She was sentenced to a term of two years and eight months’ imprisonment after plea.  The judge adopted a three-year starting point before any enhancement for the prevalence of this type of offence.  Accordingly he reduced the three-year starting point to one of two years to give credit for the plea, and then added thirty-five per cent to that sentence in the light of the evidence that was adduced as to prevalence.  This resulted in a term of two years and eight months’ imprisonment.  In particular the judge said:

“19.    For an offender with maybe three or four similar previous convictions a starting point of 27 months’ imprisonment would be appropriate …  But for someone with your record, the starting point must be higher, and I consider that a 3 year starting point is appropriate for you ….”

2.In the light of the recent decision of the court in HKSAR v Ngo Van Huy CACC 107 of 2004 decided on 28 September 2004, it seems to me that the starting point adopted by the judge before enhancement is a matter that is worthy of consideration by the full court.  To this end, I shall therefore grant the applicant leave to appeal against sentence.  I should add that in a written submission dated 8 December Miss Ho on behalf of the government opposes the application and draws to the attention of the court a number of authorities not including either the case of Ngo Van Huy or the more recent decisions of the Court of Appeal handed down on 25 November 2004.  This is not a satisfactory state of the affairs.

Applicant, WONG KAI CHUN, in person

Miss Lily Ho, SGC of the Department of Justice for the Respondent