HKSAR v. Jiang Siyuan

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)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Beeson J

Date of Hearing: 21 September 2005

Date of Judgment: 21 September 2005

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J U D G M E N T

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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:

“… (i) the offence was committed inside a busy packed train compartment of the MTR during the rush hour on 3 January 2005, a working day on Monday; (ii) the defendants were working in concert with each other to distract the attention of the victim; (iii) there was this engagement of more than 1 participant to facilitate the disposal of the stolen property; (iv) this also rendered detection more difficult; (v) the engagement of youngsters such as the 17-year-old D2 to be a party in the pickpocketing act.  The utilization of young criminals lowers the level of caution of the general public on the intended criminal acts of the group.  This also pollutes the younger generation into engaging in criminal activities.

7.   The properties stolen from the victim in the present case were not of significant financial value.  But one [does] have to bear in mind the inconvenience caused to the victim with the loss of her staff card, and the likely use to the thieves of a key to her premises.  I do not feel the degree of culpability in the current case is any less than that of the defendant in Ngo Van Huy.

8.   For crowded area, an additional term of 3 months ought to be considered.

9.   The defendants in the present case were visitors from the mainland.  They engaged in the theft act the 1^st day [they] arrived [in] Hong Kong on their 2-way permit.  They acted in concert to facilitate their crime and to avoid detection.  For the concerted operation of group defendants, I note the comments of Chan, J (as he then was) in Saldana CACC 655/96 and those of Lugar-Mawson, J in Liao Mei CACC 432/04, both of whom considered a starting point of 2½ years to be appropriate.

10.   Bearing in mind the engagement of a youngster in the pickpocketing team, I consider a starting point of 2 years and 9 months appropriate for the present case.

11.   The strongest mitigating factor for the 2 defendants is their plea of guilty indicating remorse, saving court’s time, prosecution’s time and the time of the witnesses, I do accord D1 a 1/3 discount and sentence [the applicant] to a term of 22 months’ imprisonment in respect of his theft (pickpocketing) conviction.

12.   In respect of D2, in light of his young age, I will call for a TC report and a background report before sentence.”  (Appeal bundle pp. 6-8)

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 2^nd 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:

“We take this opportunity to indicate that in our view, because of their seriousness, organized 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.”

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.