HKSAR v. Pham Ngoc Trinh
Read the full judgment text of CACC 439/2004 on BabelCite. This Court of Appeal judgment was delivered on 8 April 2005 before Ma CJHC, Stock JA.
Criminal law – sentencing – theft – pickpocketing – enhancement under the Organized and Serious Crimes Ordinance (Cap. 455) – persistent offender – guilty plea discount – Court of Appeal reducing OSCO enhancement from 50% to one-third – Applicant convicted on his own plea of theft (pickpocketing) in Mongkok crowded street – Applicant with 16 prior convictions involving 23 charges including 7 theft-related offences – whether 50% OSCO enhancement imposed by trial judge was excessive – held, yes, appropriate enhancement is one-third in line with recent Court of Appeal authority – starting point of 30 months appropriate given crowded location and very poor record – one-third guilty plea discount reduces to 20 months – one-third OSCO enhancement yields 26 months – leave to appeal granted, appeal allowed, sentence reduced from 30 months to 26 months.
Legal issues: Appropriate enhancement under the Organized and Serious Crimes Ordinance for pickpocketing offence
Outcome: Leave to appeal granted; appeal allowed; sentence reduced from 30 months to 26 months' imprisonment.
Cited by 6 cases
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CACC439/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 439 OF 2004 (ON APPEAL FROM DCCC NO. 919 OF 2004) ______________________ BETWEEN
______________________ Before: Hon Ma CJHC & Stock JA in Court Date of Hearing: 8 April 2005 Date of Judgment: 8 April 2005 ______________ J U D G M E N T ______________ Hon Ma CJHC (giving the judgment of the Court) : 1.On 27 September 2004, the Applicant was convicted on his own plea of one count of theft (involving pickpocketing) and was sentenced to 30 months’ imprisonment. He now seeks leave to appeal against sentence. He was also charged with resisting a police officer in the due execution of his duty but this charge has not been proceeded with and has been ordered to be left on the file. 2.The facts were that the Applicant was spotted by an off-duty police officer on 22 July 2004 in Mongkok (at Sai Yeung Choi Street near Argle Street) pickpocketing a lady’s handbag. He was seen taking a wallet. After being intercepted by the police officer, he initially resisted but was eventually overcome with the assistance of another police officer. 3.The Judge took as a starting point a sentence of 30 months and reduced this by one-third to 20 months on account of the guilty plea. He then made an enhancement of sentence under the Organized and Serious Crimes Ordinance, Cap.455 (“OSCO”) of 50% to arrive at a total sentence of 30 months. 4.In this application, Mr Kevin Chan submits only one ground of appeal. He argues that the Judge applied too high an enhancement under OSCO. In line with recent cases of this case being HKSAR v Ngo Van Huy, CACC107/2004; HKSAR v Duong Van Dung, CACC284/2004 and HKSAR v Liao Mei and 2 Others, CACC432/2004, the appropriate enhancement should only be one-third. Mr David Leung, who appears for the Respondent, agrees. 5.In our view, the starting point of 30 months was entirely appropriate given the fact that the theft took place in a crowded street where pedestrian traffic was heavy and in view of the Applicant’s very poor record. He can be classified as a persistent offender, having 16 convictions involving 23 charges (7 of which are theft related). With his plea of guilty, this starting point is reduced to 20 months. The appropriate enhancement in this particular case is, we agree, one-third and this would make the applicable sentence to 26 months. 6.In the circumstances, we give leave to appeal on sentence, and, treating the hearing of the application as the appeal proper, allow the appeal and accordingly reduce the sentence from 30 months to one of 26 months.
Mr Kevin S K Chan instructed by the Director of Legal Aid for the Applicant Mr David Leung of the Department of Justice for the Respondent |