HKSAR v. Zhang Li Ping and Another

CACC 403/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 403 OF 2004

(ON APPEAL FROM dcCc 662 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP and Tang JA

Date of Hearing: 16 March 2005

Date of Judgment: 16 March 2005

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J U D G M E N T

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Tang JA (giving the judgment of the Court):

1.The applicants were sentenced by Judge Yuen to two years and four months’ imprisonment for the offence of conspiracy to steal on 25 August 2004.  They now seek leave to appeal against sentence.

2.The facts, which were agreed, were that the applicants had been observed by plainclothes police officers acting suspiciously inside a shop in Tsimshatsui.  They were seen approaching a female customer.  The 2^nd applicant touched her handbag while the 1^st applicant moved a cutter blade over the handbag.  They walked away when the female customer noticed them.  They repeated the same act to another female customer who was also alerted and they left the shop.  They were then arrested.  A 4cm x 2cm cutter blade wrapped with tissue paper was found on the 1^st applicant.

3.The 1^st applicant, 39 years of age, has one similar previous conviction.  The 2^nd applicant aged 31 but she has two similar previous convictions.

4.The judge took thirty months as the starting point, reduced it to twenty months for the guilty plea, and then enhanced it by 40% under section 27 of the Organised and Serious Crimes Ordinance, Cap. 455 (OSCO).

5.On 28 September 2004, this court differently constituted in HKSAR v. Ngo Van Huy, CACC 107/2004 provided guidelines for this type of offence.

6.In that case, this court was concerned with an offence which was committed on 7 December 2003.  Here, the offence occurred on 30 April 2004.

7.The judge did not have the benefit of those guidelines.  Mr Suen, for the applicants, has submitted and we agree that it is right that the applicants’ sentence should be considered against the guidelines.

8.According to the guidelines, the starting point for sentence for a first offender should be twelve to fifteen months.  But the court could take into consideration aggravating circumstances and the aggravating circumstances in this case are as follows:

(a)	the use of a cutter blade;
(b)	the applicants working as a pair;
(c)	the offence was committed on Friday, 30 April 2004 just before the Labour Day holiday at 6:00 p.m. in a shop at Carnarvon Road, a place where the public is at particular risk;
(d)	both applicants have similar previous convictions and it is a matter of note that each of them has similar previous convictions under different names.

9.We believe in all the circumstances, the proper starting point should be thirty months.  With a one-third discount for the guilty plea, the sentence of thirty months is reduced to twenty months.  The sentence is to be enhanced under OSCO by one-third that was the decision of this court in Ngo Van Huy.  We adopt the same percentage of enhancement and rounding it off after the one-third enhancement, the sentence becomes twenty-six months. 

10.For the above reasons, we grant leave and treating the hearing as the hearing of the appeal, we quash the twenty-eight months sentence and substitute a sentence of twenty-six months in each case.  To that extent, the appeals against sentence are allowed. 

11.The 1^st applicant has not pursued her appeal against sentence in relation to the separate offence of possession of dangerous drugs so that sentence remains undisturbed and is to be served consecutively to the sentence in relation to the offence of conspiracy to steal.

Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Mr Suen Kam Hee, instructed by Messrs To, Lam & Co., assigned by the Director of Legal Aid, for the 1^st and 2^nd Applicants.