HKSAR v. Yip Wai Leung and Others

CACC 430/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 430 OF 2004

(ON APPEAL FROM DCCC 277 of 2004)

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BETWEEN

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Before:  Hon Stuart-Moore Ag CJHC, Suffiad and Lugar-Mawson JJ

Date of Hearing:  26 May 2005

Date of Judgment (re: conviction):  26 May 2005

Date of Reasons for Judgment (re: conviction):  1 June 2005

Date of Judgment (re: sentence):  1 June 2005

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J U D G M E N T

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

1.On an amended charge of conspiracy of steal, contrary to section 9 of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200, the applicants (D1, D2 and D3 respectively) were alleged to have conspired together and with others unknown to steal between 30 May 2002 and 27 June 2002.  They were each convicted on 14 September 2004, following a trial in the District Court before Deputy Judge D I Thomas.  On 17 September 2004, D1 and D2 were sentenced to 4 years and 9 months and D3 was sentenced to 4 years’ imprisonment.

2.Each of the applicants filed a notice for leave to appeal against conviction and sentence.  Legal aid was granted only in respect of the latter application.

3.At the conclusion of proceedings on 26 May 2005, we dismissed all the applications in respect of conviction and reserved our decision in regard to sentence.  We now provide our reasons for dismissing the conviction applications and give judgment so far as sentence is concerned.

The facts

4.The broad basis of the allegation was that the applicants, together with others, were part of a gang of pickpockets.  Their activities became the subject of police surveillance, in particular at Mongkok KCR Station (the station) although not exclusively at that location.  Some of the police who were engaged in this exercise posed as travellers and themselves became the target of the gang’s activities.  The police also had the use of tapes taken from the surveillance cameras mounted in various parts of the station.  Police observations took place on 4 days between the dates set out in the charge sheet.

5.At the conclusion of the operation, 9 men were arrested of whom one was not charged.  The judge found that for 5 of them there was no case to answer.  The applicants did not give evidence.

6.On any view, the activities of the pickpocketing gang were carried out in a highly organised and practised way.  The judge set out the evidence against D1, D2 and D3 which described their activities with precision and in detail.  The judge then gave a summary of some of the salient parts of the evidence, beginning with the events on 30 May 2002, against D1, D2 and D3.  Amongst other things, the judge said:

“The evidence is clear from PW5 that a group of some twelve persons left the station and went to the Sun Wong restaurant.  A number of observers saw twelve persons leave the restaurant and split into two groups.  The larger group, consisting of some eight persons went to the ‘New Era’ money exchange in Bute Street.  Mr. Chan arrived at that money exchange and exchanged a relatively large amount of cash.  PW4 saw a member of the group go and stand behind Mr. Chan.  PW7 also saw the member of the group standing behind Mr. Chan.  PW7 used the nickname ‘Bald Head’ to describe that person.  On 27^th June 2002, PW7 identified D2 from his identity card as the person he had described during his period of observation as ‘Bald Head’.  Mr. Chan put the cash into a compartment of his briefcase and zipped the compartment closed.

The group, including D2 followed in a loose formation around Mr. Chan.  When the group and Mr. Chan reached the vicinity of the noodle shop, it is clear that the members of the group impeded Mr. Chan’s passage.  PW4 saw one member of the group take advantage of the fact that Mr. Chan was forced to stop by unzipping Mr. Chan’s briefcase and putting his hand inside in a search that was, clearly, unsuccessful.  PW4 gave this person the nickname ‘Big Eyes’.  Mr. Chan then successfully moved past the cordon set up by the members of the group and went into the noodle shop.  I am invited to say that the prosecution evidence as to what happened in the vicinity of the noodle shop is not reliable, because PW4 and PW7 used the term ‘struggle’ to describe how Mr. Chan got past the members of the group in order to enter the noodle shop, whereas Mr. Chan did not.  However, Mr. Chan made it clear in his written statement that his way was blocked and that some persons were in front of him and some behind him.  It is abundantly clear that Mr. Chan would have had to push his way through the members of the group in order to get to the noodle shop.  It is clear to me, therefore, that there is no dispute at all between the prosecution witnesses and that there is one scene only being described.

Inside the noodle shop, the members of the group surrounded Mr. Chan as Mr. Chan was engaged in ordering his food.  PW4 further observed that the actions of the group made the environment around Mr. Chan crowded and chaotic.  PW4 saw one of the group, not ‘Big Eyes’, standing behind Mr. Chan and raising his rucksack.  The unchallenged evidence of Mr. Chan is that he found that, on more than one occasion in the noodle shop, someone had unzipped his briefcase.  PW7 saw a member of the group, a man he described as ‘White Head’ with two others to the left of Mr. Chan.  One of the others with ‘White Head’ put his hand into Mr. Chan’s bag as if searching for something.  Mr. Chan then grabbed his bag and the other one withdrew his hand.  After that, "White Head’ unzipped Mr. Chan’s bag and the same man as before with ‘White Head’ put his hand into Mr. Chan’s bag.  Again, Mr. Chan grabbed his bag and shouted at the man who had inserted his hand into the bag.

0n 27^th June 2002, PW7 identified D1 from his identity card as the person he had described during his period of observation as ‘White Head’.

After the group had drifted out of the noodle shop, PW4 and PW7 independently saw a PTU officer stop and question the person they had each described as ‘Big Eyes’.  PW13 and PW16 gave evidence that they had stopped and questioned a man.  PW13 recorded his name and identity card number as those of D3.  In cross-examination, it was suggested that, if D3 had been stopped and checked, he was merely a passer-by and that he was not part of the suspected group.  However, it is clear that, when PW4 enlisted the help of the PTU officers, he directed the attention of those officers to those from the noodle shop.  PW13 gave evidence that he stopped two persons coming out of the noodle shop, one of whose particulars he noted.  That person was D3.

The incident involving Mr. Chan was clearly one in which there was a carefully developed group joint enterprise.  It was also abundantly clear that each member of the group already knew his individual role in what was clearly a plan to steal from Mr. Chan.  There was no need for directions or instructions to be passed among the members of the group: each one clearly knew what he had to do.

The incident on the following day was also a clear group enterprise.  On 31^st May 2002, there was clearly another joint action in which PW2 was impeded and, therefore, forced to wait in a stationary position.  One man suddenly moved in front of him to occupy the turnstile and appeared to wave a wallet containing an ‘Octopus’ card over the sensor.  PW2 was aware that he was jostled and subsequently found that his wallet was missing.  PW7 observed the incident from above and saw that a number of men ‘boxed-in’ PW2.  One of those men was ‘Bald Head’, that is D2.  Whilst the man in the turnstile was impeding the forward progress of PW2 and whilst the other men prevented him from moving to either side, the man described by PW7 as ‘White Head’, that is D1, unzipped the bag of PW2 and stole his wallet.  D1 then walked away from the turnstile, as did the other men.

The video surveillance tapes, whilst not of sufficient quality to enable identification to be made of individuals, does graphically show that the men blocking PW2 gave every appearance of being members of the travelling public wishing to go through the turnstiles to gain access to the trains.  However, once the theft had been effected, the men gave up this pretence (for such I am satisfied it was), and walked off without making any endeavour to go through the turnstile.

The evidence of PW5 does not identify individuals other than by reference to nicknames, As I have already set out, the fact that PW5 uses the same nicknames as PW7 does not mean that there is proof that he is referring to the same person, I therefore discounted the evidence of PW5 as far as identity is concerned.  However, I am satisfied that PW5 witnessed the share-out of the proceeds of the theft of the wallet from PW2.  PW5 saw one of the group discard a wallet into a rubbish bin outside the station.  This was not long after the theft from PW2.  The wallet was identified by PW2 as being the one either stolen from him or identical to it.  PW5 described the man whom he saw first with the wallet as ‘White Head’.  Whilst I have indicated that I cannot use this evidence to find that the man in question was D1, the effect of the evidence of PW5 is that the man was either D1 or a man to whom D1 had very recently handed the wallet.  PW5 saw the man he described as ‘White Head’ hand the wallet to the man he described as ‘Japanese Boy’.  PW5 was able to say that when ‘Japanese Boy’ looked into the wallet he found money therein.  Clearly, therefore, this group was involved in the disposal of the proceeds of the theft and were therefore linked to the theft in which PW7 had been able to show D1 and D2 had been involved.

The incident on 27th June 2002 was almost identical to that which had occurred on 31^st May 2002.  Again, a person slipped into the turnstile at the last minute ahead of PW3.  PW6 described that person as ‘Junkie’.  This incident showed that the still photographs taken from the surveillance cameras did not do justice to the skill involved in the theft.  One has to watch the video itself to appreciate what went on.  One can see the person who impeded PW3 time his move to perfection.  He moved into the turnstile in such a way that an observer can see that the move was deliberate.  The person being impeded would only be aware, however, of the actions of an apparently aggressive queue-jumper.  PW6 was able to see that, whilst PW3 had to wait for the blockage at the turnstile to clear, a man immediately behind PW3 unzipped the briefcase carried by PW3 and took out the wallet that contained the money marked with fluorescent powder.  Again, all the persons involved in the joint action to steal from PW3 turned away from the turnstile after the theft had occurred.

As with the incident on 31^st May 2002, the incident on 27^th June 2002 was clearly a well-thought out and well-executed theft, with the participants playing roles that were clearly well-rehearsed and equally well-executed.”(Appeal bundle at pp. 42-46)

The judge had earlier described how the applicants were arrested inside the station after this incident had been observed.  D1 was found in possession of the banknotes which had been taken from PW3.  These had been treated with fluorescent powder.

Shortcomings in the prosecution’s evidence

7.The surveillance evidence was not without its difficulties.  Here, as the judge observed, the case turned on identification.  Despite this, the police were given no observation log books which are normally utilised in such cases.  Instead, a ‘general investigation file’ was used and, not surprisingly, its contents were excluded from use in court leaving the surveillance officers having to fall back on the entries they had individually made in notebooks.

8.The judge also found that the still photographs taken from the video recordings made by the railway surveillance cameras were of insufficient quality to make a satisfactory identification from them and he indicated his surprise that some effort was not made to film the persons involved in the various acts of pickpocketing so that identification could be made more possible.

9.The third reservation about the police evidence was that the police had used nicknames for those they were watching but there was no evidence, as the judge put it, that “all the witnesses came together to agree on the identities of those given nicknames”.  This left the difficulty in certain instances that the judge could not be certain that when one officer spoke about a suspect by reference to his nickname, another officer’s reference to the same nickname related to the same person.

10.Perhaps most seriously of all, the police held no formal identification parades for those officers who had been acting as decoys or observers.  When the prosecution applied to be allowed to conduct ‘dock identifications’, the judge rightly refused the application as being wholly inappropriate.  The result was the acquittal of five defendants against whom there was no case to answer.

11.The reservations which the judge made are not only matters which the police would do well to remember if they are ever to improve their system of acquiring evidence in such cases, but also are important in the present application as demonstrating the care with which the judge approached the testimony of the witnesses.

12.What remained of the evidence was subjected to careful scrutiny by the judge.  This can be examined in the light of the grounds of appeal raised by the applicants.

Grounds of appeal

(1)  D1’s grounds

13.In the first of his homemade grounds, D1 asserted that he had not joined a plan with others.  However, he admitted in this ground that he had committed an act of theft.  Indeed, this was the basis on which D1 attempted to plead guilty on his arraignment on 31 May 2004 when, apparently to the surprise of his own trial counsel, he announced that he would not plead guilty to the conspiracy (which was originally in charge 5) but would plead guilty to theft, asking later if the charge was “theft by finding” as he had “just picked up” the item in question.  Whilst there was nothing to prevent D1 from expressing a desire to plead guilty to theft, it is not surprising that the prosecution rejected the offer.  This decision was amply justified in the light of the judge’s findings that D1’s activities were pursuant to a joint enterprise arising from a conspiracy by the applicants to steal.

14.The second ground of appeal focused on one of the judge’s concerns about the manner in which the case had been investigated, namely that the police had never attended a formal identity parade.  In addition, he stated that it emerged at trial that he had not been cautioned at the time of his arrest.  As the judge was aware of the problem relating to identification and knew that no caution had been administered on arrest, this ground does not have any substance.  As to the second of these points, we were informed by Mr Simon Tam, on the respondent’s behalf, that the applicants had in any event said nothing at that time.

15.The third ground makes the complaint that after the trial resumed, having begun on 31 May 2004 and run for a few days before it was adjourned to August, the format of the statements given by the police witnesses had been “adjusted” from the form in which they originally appeared on or about 27 June 2002 just after the arrests had been made, and he complained that this and some discrepancies is the police evidence resulted in unfairness to him.  Again, there is no substance in these complaints.  Counsel who represented D1 in the trial which began on 31 May 2004 also represented him in the resumed hearing in August 2004.  There was no suggestion at trial of any adjustment being made to the police evidence, in the sense that it had been improved upon by the stage of the second hearing, and such discrepancies as there may have been between the evidence provided by police officers and a civilian witness, Mr Chan, were not such as to give rise to any concerns about their credibility.

(2)  D2’s grounds

16.The essential element in each of D2’s grounds was that there was no safe evidence to link him to the charge of conspiracy.  In particular, following his arrest, it was emphasised that there was no trace of “golden powder” on him or his clothes which would have been transferred from the marked money used by the undercover police if he had touched either the banknotes or the police officers who must have had such powder on them.  D2 made the additional point that not only was there no fingerprint evidence in the case, the victim in one of the alleged theft incidents had failed to pick him out on 3 July 2002 despite his own distinctive appearance, reflected in his nickname “Bald Head”.  D2 also made a number of similar points to those made by D1, referring to the acquitted defendants who the police had failed to identify formally following the arrests, and the failure by the police to observe procedural rules properly by not administering the caution.  D2 contended in addition that:

“Pickpocking is an ad lib act.  There will never be a destined place or a target beforehand.  (A pickpocket) has to wait for the chance to bump into a careless guy, like the undercover policeman, who at the time put his wallet in the most conspicuous, enticing and accessible place, making himself the victim.  It is only that simple.  (Thus), I do not think I had a fair and just trial.”

D2 levelled a general ground of appeal at the incompetence of the police operation which had extended over a month, yet failed to achieve anything other than providing a muddled case which was so complicated that even he had become confused by it.  He asked, rhetorically, why the police had not arrested the culprits when they had seen alleged acts of theft instead of waiting so long.

17.It has to be said, as we have indicated already by our reference to the judge’s sound advice to the police about the way in which their operating methods could be improved in future surveillance cases, that this was not the best organised of surveillance operations.  There were the shortcomings we have set out already which the judge recognised and took into account, but none of these had anything to do with the failure by the police to interrupt their surveillance operation by making arrests.  This would have been an operational decision largely based, no doubt, upon when the time was ripe to swoop on some or all the suspects the police team had been watching.  An arrest made too early would more than likely have disrupted the operation altogether.  That being said, the longer the operation went on, the greater became the need for the use of surveillance logs, for the identification of the suspects in themselves and of the nicknames with which each of them had been labelled and, if possible, for clear photographic evidence.  The failure of the police to adopt these basic measures led to a relatively shambolic prosecution in the District Court.  However, the judge was careful to put aside the evidence upon which no reliance could be placed and to consider only the evidence he was confident he could rely upon.

(3)  D3’s grounds

18.D3 repeated many of the same points made by D1 and D2, adding that PW13 had lied and changed his evidence in a way that was unfair to him.  As to this last point, this was a matter for the judge to decide.  There was no evidence called to contradict PW13’s account.  A similar complaint was made about PW7 to the effect that he had lied when saying that he had arrested D3.  Again, there was no evidence to contradict PW7.

19.D3 also complained that no identification parade books or telephone records were produced in court and that there was an unsatisfactory explanation for the delay in bringing charges only in 2004 following June 2002 arrests.  We are led to understand that the main reason for the delay was the long time taken by the Government Chemist to supply certificates in relation to certain exhibits which had to be subjected to scientific examination.  We were informed that this took about 14 months and that it was not until a further 4 months had elapsed before the police submitted their report to the Department of Justice for legal advice.  We are disturbed at such a lengthy delay which on any view should not have occurred in a jurisdiction which takes pride in its advanced system of justice.  Mr Tam has kindly undertaken to inform the court in due course as to why the Government Chemist took so long in the examination of the exhibits.

Conclusion (on conviction applications)

20.When the judge reached his verdicts, having reduced the evidence on which he relied to terms which he set out with clarity, he expressed himself as follows:

“In the present case, the evidence was, in fact, simple and straightforward.  I am entirely satisfied so that I am sure that the prosecution has proved that, although not each defendant was present during each incident, there was one and only one conspiracy to steal.  The agreement was clearly a continuing one and involved an agreement to steal property from the luggage of others.  Furthermore, it is also clear that this agreement centred on the station in question and its vicinity.” (Appeal bundle p. 50)

21.We have not been able to detect anything in the judge’s approach to the law or the facts which can, with justification, be criticised.  On the contrary, the judge’s Reasons for Verdict demonstrate an in-depth analysis of the salient points in the case which took on board not only the prosecution’s evidence which could be safely accepted but also the serious deficiencies in the evidence called by the prosecution. 

22.Accordingly, for the reasons we have given, we dismissed all the applications so far as they concern conviction.

Sentence

23.A single ground was advanced by Mr Kevin Chan on all the applications for leave to appeal against sentence.  He contended that the sentences were manifestly excessive because the judge had “erred in having adopted a basic starting point of 4 years’ imprisonment”.

24.In his Reasons for Sentence, the judge aptly summarised the criminality revealed by the activities of the applicants as a “well prepared, well planned and well rehearsed conspiracy involving acts of dishonesty”.

25.D1’s criminal record revealed that he had been before the courts on 15 previous occasions. On all but two of these occasions, the offences which brought him before the courts were for theft or attempted theft.  In some cases, as the record demonstrates from as far back as 1981, these offences took the form of pickpocketing.  D1 was on one occasion sentenced to undergo treatment at the Drug Addition Treatment Centre and on eleven other occasions, he has been sentenced to terms of imprisonment of between 9 months and 15 months. Plainly, sentences of this length have had no deterrent effect in D1’s case.  At the time of sentence, he was 42 years old.

26.D2, aged 50, had previously been before the courts on six occasions.  Five times he has been convicted of theft or attempted theft for which he has received three prison sentences of between 5 and 15 months and, on one occasion, he was sent to the Drug Addiction Treatment Centre.

27.D3 was 47 at the time of sentence and his three previous convictions were committed between 1982 and 1984 when, on each occasion, he was sentenced to a term of imprisonment.  These terms ranged from 6 months to 9 months.  His last two offences were ‘pickpocket’ thefts.  As the judge noted, D3’s absence from the courts for 20 years and the fact that he had only been involved in one incident of dishonesty set him apart to some extent from D1 and D2 for sentencing purposes.

28.The judge took into account what was said by Penlington JA in R v Vy Van Kien & Anor [1991] 1 HKLR 422 where the usual starting point, in the absence of aggravating factors, for an offender of full age was held to be 12 to 15 months after trial.  The judge went on to say:

“In the present case, this was a systematic scheme to prey upon members of the public when they would be at a major and busy travelling interchange.  It is clear from the evidence that many members of the travelling public would be travelling to Lo Wu and then across the border into the mainland.  Those members of the public would, clearly be encumbered by pieces of luggage.  The carrying of luggage would tend to hamper any member of the public in his movements and would make it harder for him to see what was going on.  The presence of luggage would clearly also provide better prospects for the group in finding cash and items of value.” (Appeal bundle at p. 65)

29.The judge was also invited to consider what this court said in R v Saldana Alca Jose and Anor, CACC 655/1996 (unreported) where 2 Peruvian thieves operated by pouring a messy substance onto the victim and, in the ensuing confusion, then stole from him.  A 4-year starting point was upheld and P Chan J (as he then was), when delivering the Court of Appeal’s judgment said:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

30.The judge in the present case was asked by the prosecution to consider an application under section 27 of the Organised and Serious Crimes Ordinance, Cap. 455 (OSCO), for the enhancement of the sentences on the footing that this was a prevalent crime.  However, the judge decided that he was able to deal with the matter, as he put it, “by reference to ordinary principles of sentencing”.  He was, of course, entirely justified in taking this view but if the judge had had the benefit of the decisions of this court to which we shall shortly turn, dealing with situations of precisely this kind, where the OSCO route was taken, we feel confident that the judge would have adopted the same course.  These decisions came just after sentence was imposed in the present case. 

31.Taking, firstly, the route adopted by the judge, he turned to the general position disclosed by the evidence and to D3’s situation in particular, saying:

“In my judgment, the present case shows a far greater level of criminality committed over a much longer period than the situation with which the courts were faced in each of the cited cases.  In my judgment, to counter the level of criminality adopted by the participants in the present conspiracy, a sentence of four years’ imprisonment is appropriate.  In the case of D3, I am not attracted by the submission that he was only seen participating in one act of dishonesty.  Not only is his participation in the conspiracy shown to be sophisticated, I also note that he was arrested at the station, hanging around in the company of other Chinese males.  Furthermore, this was an occasion when the other two defendants were in the vicinity and when D1 had just been involved in the theft at the turnstiles.  It is clear that D3 was still very much part of the on-going conspiracy.

There being no other mitigating factors for D3, I pass upon him that sentence of four years’ imprisonment.” (Appeal bundle at pp. 66-67)

32.Dealing with D1 and D2, the judge said:

“In my judgment, different factors are present in the cases of the other two defendants.  It is an accepted principle in sentencing that a defendant who has not been deterred by a large number of previous sentences of imprisonment may receive a longer period of imprisonment for a particular offence than a defendant who has a clear record or who has been imprisoned only on few occasions.  In the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 [1999] 3HKC 848, Stuart-Moore VP said (at 833):

‘Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.  If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.’”

33.The judge then cited two other examples (HKSAR v Cheng Chi-shing [2001] 2 HKLRD 75 and HKSAR v Leung Tong & Anor [2001] 1 HKLRD 526) where the Court of Appeal had approved longer sentences being imposed on persistent offenders before going on to say:

“D1 and D2 both have many previous convictions for offences of theft in general and pickpocketing in general.  Indeed, a comparison of the cases of those two defendants on the one hand with the position of D3 on the other, perfectly illustrates the point that Stuart-Moore VP was making in the case of HKSAR v Chan Pui-chi (supra).

I also note that D1 and D2 have a previous history of acting in concert in offences of dishonesty. Their criminal records show that they were both sentenced for offences of dishonesty in the same case (SK/1188/99) on 23^rd June 1999.

I acknowledge that the most recent convictions for D1 and D2 respectively fall after the commission of the present offence.  However, the offences that led to those convictions were each committed whilst each defendant was on bail for the present matter.  I do not re-sentence for the matters for which D1 and D2 have already served their sentences.  However, their conduct does show that they are professional thieves and pickpockets and that they derive income from such activities.  They must, therefore, bear the risk inherent in such conduct.

Accordingly, in the cases of D1 and D2, I take a starting point of four years and nine months’ imprisonment.  There being, in my judgment, no other mitigating factors, those are the sentences I pass upon those two defendants.” (Appeal bundle at pp.68-69)

34.Mr Chan argued that a basic starting point of 4 years before enhancement by 9 months for persistence (in the cases of D1 and D2) was manifestly excessive. In particular, he submitted that this must be so in the light of the recent decision handed down on 28 September 2004 by this court in HKSAR v Ngo Van Huy, CACC 107/2004.  In that case, guidelines were given for sentencing in cases of this kind.  We emphasise again that these guidelines were given after sentence had been imposed in the present case.  Ma CJHC indicated (at para. 9(2)) in Ngo Van Huy that a guideline sentence of 12 to 15 months after trial was appropriate for a first offender.  In that case a starting point of 15 months was considered to be appropriate.  The court was concerned with a single offence of theft by pickpocketing where the appellant was operating alone.  9 months was then added for the appellant’s “appalling previous record” and a further 3 months was added because the offence was committed in a “very crowded part of Hong Kong”.  This made 27 months before the one-third discount for plea, and with an increase of one-third on the resulting 18 months for prevalence, this left 24 months in all.  Ma CJHC, in the course of the judgment, said:

“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 …… where professional pickpockets from overseas (whether an individual or in a group) come to Hong Kong to carry out this type of activity …… an increased in sentence can be imposed.” (Emphasis added)

35.In the slightly later decision in HKSAR v Fung Chi Man & Anor, CACC 226/2004, followed also in HKSAR v Liao Mei & Ors, CACC 432/2004, to both of which Mr Chan very properly directed our attention, this court approved 30-month starting points where the circumstances were similar to Ngo Van Huy but in these cases the applicants were acting as part of a ‘team’.  Realistically, Mr Chan accepted that all the aggravating features, which were present in all three cases, were also present in the case now before us.    

36.The Court of Appeal in Ngo Van Huy, Fung Chi Man & Anor and in Liao Mei & Ors was concerned in each case with an approach to sentence involving an element of enhancement for ‘prevalence’ under OSCO.  The judge in the present case, as we have indicated, adopted normal sentencing considerations without considering it necessary to resort to OSCO although he had been provided with evidence of the prevalence of this type of offence.  Obviously, however, it is important that by whichever route a judge arrives at his sentence in such cases, the offender is not left worse off than he would have been if the alternative route had been taken.  Going back, therefore, to Fung Chi Man & Anor and Liao Mei & Ors, where in each case a 30-month starting point was not criticised for pickpocketing offences and where a ‘team’ was at work, these were pleas of guilty where the normal discount of a third was given, bringing the sentences down to 20 months before enhancement by a third was applied.  If these cases had been contested trials, the one-third enhancement would have been added to the 30-month starting points taken in each case leaving 40 months which Mr Chan argued was more in line with the appropriate starting point for the present case.

37.It can be seen from the approach in the 3 appellate cases, decided after sentence in the present case was imposed, that the basic starting point of 48 months selected by the judge represented a higher starting point than this court has contemplated for this kind of offence.  The question remains, however, where D1 and D2 were seen to have been operating on more than one occasion whether, in those circumstances, their sentences should in any event be longer than in those cases where only one act of theft was observed, bearing in mind also that this was a conspiracy charge which plainly reflected greater overall criminality.

38.In this regard, we feel it is important to add that while the applicants were very properly dealt with as a sophisticated team of thieves, the judge’s sentence on D1 and D2 of 4 years and 9 months was approaching the sort of sentence a robber armed with a knife or a serial burglar might expect.  Whatever else may be said about the evils created by pickpockets, who doubtless represent a considerable menace to society, pickpockets do not use or threaten violence or invade the privacy of the home or other buildings in the commission of their crimes.  To this extent, we consider that some distinction should be drawn between those whose dishonesty is confined to theft by pickpocketing and those who resort to some form of violence or invasion of privacy.

39.Whilst we entirely sympathise with the judge’s concerns about the level of sophistication amongst the gang’s members, of which the applicants were but three, we have concluded for the reasons given that as a matter of principle these sentences must be reduced.  In our opinion, a basic 36-month starting point is appropriate in the case of D3 who was only observed actively engaged in one theft in the context of this conspiracy and whose criminal record was far less serious than the others.  For D1 and D2, we consider that a higher starting point is merited to reflect the fact that each of them was actively involved in more than one theft.  In their cases, 42 months is appropriate.

Conclusion

40.Accordingly, we shall grant leave in each case and, treating the hearing as the appeal, D1 and D2’s sentences will each be reduced by 15 months to 3½ years’ imprisonment and D3’s sentence is reduced by 12 months to 3 years.  To this extent, the appeals against sentence are allowed.

Mr Simon Tam, SGC, of the Department of Justice, for the Respondent.

Mr Kevin Chan, instructed by Messrs C S Chan assigned by Director of Legal Aid, for the Applicants (re: sentence).

The Applicants in person (re: conviction).