HKSAR v. Jiang Siyuan
Read the full judgment text of CACC 160/2005 on BabelCite. This Court of Appeal judgment was delivered on 21 September 2005 before Stuart-Moore VP and Beeson J.
Criminal law – theft – pickpocketing – sentencing – appeal – whether sentencing court erred in treating co-accused's youth as aggravating feature – whether starting point manifestly excessive – HKSAR v Ngo Van-huy [2005] 2 HKLRD 1 – R v Saldana Alca Jose CACC 655/1996 – Liao Mei CACC 432/04 – starting point of at least 2½ years for organised group pickpocketing – applicant and D2, aged 21 and 17, arrived in Hong Kong on two-way permits and immediately engaged in coordinated pickpocketing on MTR train during Monday rush hour, stealing staff card and key from victim's rucksack – D1 pleaded guilty – whether applicant should receive higher sentence than co-accused where they were equals in planned, professional venture – Court of Appeal held that despite age gap of about 4 years, both accused deserved to be punished equally; treating D2's youth as aggravating in applicant's case was erroneous – appeal allowed; sentence reduced from 22 months to 20 months' imprisonment to match D2's sentence.
Legal issues: Whether sentencing court erred in treating youth of accomplice as aggravating feature in applicant's case and whether sentence was manifestly excessive relative to co-accused
Outcome: Leave to appeal granted; appeal allowed; sentence reduced from 22 months to 20 months' imprisonment.
Cited by 7 cases · Cites 2 cases
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CACC 160/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 160 OF 2005 (ON APPEAL FROM DCCC NO. 160 of 2005) ____________________ BETWEEN
____________________ Before: Hon Stuart-Moore VP and Beeson J Date of Hearing: 21 September 2005 Date of Judgment: 21 September 2005 ____________________ J U D G M E N T ____________________ Stuart-Moore, VP (giving the judgment of the Court): 1.On 9 April 2005, the applicant, aged 21, pleaded guilty in the District Court before Judge Yuen to a charge of theft. He was sentenced on the same day to 22 months’ imprisonment against which he now seeks leave to appeal. 2.The facts of the case could not be more straightforward. The applicant, together with a male accomplice (D2) aged 17, on their first day in Hong Kong as two-way permit holders, boarded an MTR train at Tsim Sha Tsui. They had already drawn attention to themselves by their suspicious behaviour, and officers attached to a surveillance unit followed them onto the train. Soon afterwards, D1 was seen using a bag to cover his hands as he unzipped the rucksack of an unsuspecting victim (PW1). D1 then successfully stole a staff card and a key but his attempt to steal an MP3 player failed when the item slipped from his grasp and back inside the rucksack. D1 then passed the stolen items to D2. Both men were immediately arrested and they later admitted the offence. 3.The judge referred to the recent decision in HKSAR v Ngo Van-huy [2005] 2 HKLRD 1 wherein sentencing guidelines for pickpockets were provided by this court. From these guidelines, the judge set out, amongst other things, the aggravating circumstances which she considered were present and stated that:
4.In the event, we are told that after Training Centre reports had been provided, D2 was sentenced to 20 months’ imprisonment. 5.Ms Monica Chow, on the applicant’s behalf, in a concise and realistic submission, contended that the judge had made an error when treating D2’s age as an aggravating feature in the applicant’s case and she also, in a closely related argument under a 2nd ground, submitted that the starting point taken of 2 years and 9 months was manifestly excessive. However, the essence of Ms Chow’s argument was that there was nothing in principle to suggest that the applicant’s culpability was greater than his accomplice’s and, as D2 had received 20 months’ imprisonment, there was no justification for the applicant finding himself having to serve a more severe sentence than this. In particular, she submitted that D2 was not so young that he could effectively be regarded as a child who had been used by an adult in the commission of a crime which, if such had been the case, would in all probability have called for the older offender to receive a considerable measure of additional punishment. 6.In short, Ms Chow accepted that a starting point of 30 months, which seems to have been taken in D2’s case, could not be criticised. In saying this, she had in mind that in paragraph 9 of HKSAR v Ngo Van-huy (above), the judgment of Patrick Chan J (as he then was) in R v Saldana Alca Jose and Anor, CACC 655/1996 (unreported) was cited with approval. This reads:
7.We agree with the submission made by Ms Chow and accept her argument that on the present facts there was insufficient reason for the applicant to have received a higher sentence than D2. Each of them, within a short time of their arrival in Hong Kong, was immediately engaged in stealing in a manner which indicated a practised and professional approach to the task. Despite an age-gap of about 4 years, these were in all other respects equals in a planned, dishonest venture in Hong Kong. As such, in our opinion they deserved, on these facts, to be punished equally. 8.As a matter of principle, therefore, we shall give leave and, treating the hearing as the appeal, we allow the appeal and reduce the applicant’s sentence to 20 months’ imprisonment.
Mr David C Leung, SADPP (Ag), of the Department of Justice, for the Respondent. Ms Chow Wai Choo, Monica, instructed by Messrs Lo Chan & Leung assigned by Director of Legal Aid, for the Applicant. |
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