HKSAR v. Fung Chi Man and Another

CACC 226/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.226 OF 2004

(ON APPEAL FROM DCCC 384 of 2004)

____________________

____________________ 

Before:   Hon Stuart-Moore VP andLugar-Mawson J

Date of Hearing:  15 December 2004

Date of Judgment: 15 December 2004

_________________

J U D G M E N T

_________________ 

Stuart-Moore, VP (giving the judgment of the Court):

Introduction 

1.On 17 May 2004, the applicants, D1 and D2 respectively, pleaded guilty in the District Court before Judge W. Wong to a joint charge of theft by pickpocketing.  They were each sentenced to twenty-six months’ imprisonment against which they now seek leave to appeal.

The agreed facts

2.The facts were that at about 11:10 p.m. on 3 March 2004, plainclothes police officers observed D1 and D2 in Nathan Road, Mongkok, paying particular attention to handbags and rucksacks being carried by women passers-by.  At about 11:15 p.m., when a young woman carrying a rucksack crossed the street with a friend and walked along Nathan Road, D1 and D2 began to follow them closely.  D1 pressed the rucksack with his left hand and unzipped it with his right hand.  He inserted his hand into the rucksack and took out a mobile phone which he immediately passed to D2.  Both of them turned around and walked away.  The police who had been keeping them under observation then pursued and arrested them.

Sentencing

3.The judge, when sentencing D1 and D2, noted their previous convictions.  D1, who was aged about 36, had ten previous convictions over a period of nearly seventeen years, from August 1985 to July 2002.  Amongst a variety of offences, D1 had been convicted of theft in June 1988, April 1995 and July 2002 for which he was sentenced to various relatively short terms of imprisonment imposed in magistrates’ courts.  D2, aged about 34, had twenty-four previous convictions over a period of thirteen years from July 1990 to August 2003, of which seventeen were for theft or attempted theft.  He, too, had been sentenced to various terms of imprisonment.

4.The judge took the view that this was a “group” offence of pickpocketing and, following R v Saldana Alca Jose and Anor., CACC 655/1996 (unreported), adopted in each case a starting point of two-and-a-half years’ imprisonment.  He reduced the starting point by a third to twenty months’ imprisonment to reflect the pleas of guilty and enhanced the applicants’ sentences by thirty percent because of the prevalence of the offence, making a total sentence of twenty-six months’ imprisonment in each case.

The application

5.Mr Tracy, in his written argument which he adopted on the applicant’s behalf, submitted that the judge had, amongst other things, erred in treating the commission of the offence as a case of “group” pickpocketing when only two thieves were acting in concert and, again, in his approach to an appropriate starting point.  To a large extent, as Mr Tracy acknowledged by citing HKSAR v Ngo Van Huy, CACC 107/2004 (unreported) amongst his authorities, this ground and others he raised were effectively overshadowed by the decision in that case which was only given on 28 September 2004.  Furthermore, since Ngo Van Huy, this court has dealt with other similar offences to the present case which were consolidated in HKSAR v Duong Van Dung and Ors, CACC 284/2004, 286/2004 and 295/2004 (unreported).

6.Mr Tracy was right to suggest that the judge had adopted an approach to the starting point by a different route to the one set out by Ma CJHC in Ngo Van Huy.  However, in an application of this sort, we are not so much concerned with the judge’s approach as with the result.  We would only reduce a sentence if an error of principle was revealed or if the sentence was manifestly excessive.

7.In this case, it is plain that these two applicants worked as a ‘team’ which is perhaps a more appropriate word to use than ‘group’.  The offence was committed in a crowded street in Mongkok late in the evening by the applicants, both of whom were persistent thieves.  These factors, in combination, provided ample justification for an enhanced starting point.  After a reduction of a third to reflect the pleas of guilty, a further enhancement of thirty percent, which the judge made for ‘prevalence’ pursuant to an application under section 27 of the Organised and Serious Crimes Ordinance, Cap. 455, was also justified.  There is, in fact, nothing which materially distinguishes this case from those very recent decisions of this court to which we referred earlier.  In saying this, we are not applying newly-issued guidelines to a case which was decided before they were given but merely commenting that the judge’s sentencing of these applicants was not out of line with those guidelines in any way which might disadvantage them.

Conclusion

8.In our opinion, the sentence for each applicant of twenty-six months’ imprisonment was not open to justifiable criticism.  These applications are, therefore, dismissed.

Mr Kevin P. Zervos, SC, SADPP of the Department of Justice,  for the Respondent.

Mr Maurice Peter Tracy, instructed by Messrs Cheung, Chan & Chung, assigned by the Director of Legal Aid, for the Applicants.