HKSAR v. Dang Van Tuan

CACC 187/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2009

(ON APPEAL FROM DCCC 257 OF 2009)

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BETWEEN

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Before: Hon Yeung JA and Beeson J

Date of Hearing:  19 November 2009

Date of Judgment: 25 November 2009

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.The applicant, Dang Van-tuan, pleaded guilty to a charge of theft before Deputy Judge E Yip (as he then was) in the District Court and was sentenced to 2 years’ imprisonment. Represented by Ms Monica Chow, the applicant seeks leave to appeal against sentence.

The Facts

2.The applicant, together with another man, targeted a female victim in Metro Harbour Plaza in Tai Kok Tsui, Kowloon. The applicant stretched his hand to steal the victim’s wallet from her shoulder bag and passed it to his accomplice who then wrapped the wallet with a piece of paper.

3.An off-duty police officer witnessed the crime, leading to the arrest of the applicant and his accomplice. The applicant told the officer that he pick pocketed because he had no money for a meal.

4.The victim suffered no loss, as she was able to recover her wallet and its contents, including $80, an Octopus card and her identity card.

The Applicant’s Background and His Mitigation

5.The applicant, 38 years old, came to Hong Kong as a refugee from Vietnam in 1990. His wife, a son and his father are still in Vietnam. The applicant had 20 previous convictions, including 10 for theft or attempted theft. The other previous convictions are mainly drug-related.

6.The applicant claimed to be in financial difficulties as the public assistance he received was insufficient to maintain himself and his family in Vietnam.

The Judge’s Approach

7.The judge, referring to the guideline sentence of 12 to 15 months after trial for a first offender, pointed out the following aggravating factors:

(1)  The offence took place in a crowded location; and

(2)  It involved some planning and a tool (the newspaper to conceal the wallet).

8.The judge further emphasized that the applicant was a recidivist offender before adopting a starting point of 3 years. The judge reduced the starting point by one-third on account of the guilty plea and sentenced the applicant to 2 years’ imprisonment.

Grounds of Appeal

9.Ms Monica Chow argues that despite the aggravating factors identified by the judge, the 3-year starting point is manifestly excessive. She suggests that a more appropriate starting point should be no more than 30 months.

10.Ms Chow emphasizes that in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the defendant was a persistent offender with 35 previous convictions, of which 17 were similar. The Court of Appeal considered 15 months to be an appropriate starting point, which was then increased by 9 months to reflect the defendant’s appalling previous record and by a further 3 months for the aggravating factor that the offence took place in a crowded area, leading to a total starting point of only 27 months.

11.Ms Chow also refers to HKSAR v Duong Van Dung (unreported CACC 284 of 2004), where a starting point of 30 months was considered appropriate for a persistent pickpocket, with 13 previous convictions, of which 5 were for pick-pocketing, who operated with an accomplice and HKSAR v Nguyen Huu Dung (unreported CACC 295 of 2004), where a starting point of 27 months was considered appropriate for a persistent pickpocket who operated with an accomplice in the crowded Mongkok area.

Discussion

12.Pickpocketing is a serious and most irritating offence. Apart from the financial loss, the victims of pickpocketing often suffer serious inconvenience and frustration resulting from the loss of identity documents and other personal items.

13.The offence, prevalent and easily committed by unscrupulous and often persistent offenders, must be deterred.

14.Despite the simple tool used, the offence was clearly planned when it was committed in a crowded shopping mall by the applicant and his accomplice, which in itself is also an aggravating factor.

15.The judge was right in emphasizing the applicant’s poor record. We wish to repeat what Ma CJHC said in Ngo Van Huy (supra) at pp 8H – 9A of the judgment:

“Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him: see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at pp 833-834. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence…”

16.The applicant’s repeated offences suggest that previous sentences imposed on him are simply no deterrent. A substantially higher sentence than the 12 to 15 months laid down in Ngo Van Huy (supra) for a single and first time offender(supra) is called for.

17.The ultimate sentence imposed in Ngo Van Huy (supra) on a single but persistent offender who pleaded guilty to pick pocketing was 24 months’ imprisonment. If more than one person committed the offence, the sentence was likely to be higher. However, the 24 months sentence is an enhanced sentence under the Organised and Serious Crimes Ordinance, Cap 455 (“OSCO”).

18.The ultimate sentences imposed in Duong Van Dung (supra) and Nguyen Huu Dung (supra)for pleading guilty to a single charge of pick pocketing were 27 months and 24 months respectively. The sentences had also been enhanced under OSCO.

19.In HKSAR v Doan Van Do (unreported CACC 286 of 2004) heard at the same time as Duong Van Dung and Nguyen Huu Dung, the Court of Appeal approved a 26-month sentence, on a guilty plea to a charge of pickpocket by a single but persistent pickpocket. It was, however, also an enhanced sentence under OSCO.

20.Ms Margaret Lau, for the respondent, refers to HKSAR v Yip Wai Leung & two others (unreported CACC 430/2004), in which the Court of Appeal adopted the starting points of 3½ years for two of the defendants and 3 years for the other defendant in a case of conspiracy to steal.

21.Yip Wai Leung (supra) is a case of a gang of pickpockets who, over a period of about a month, carried out pickpocketing activities “in a highly organized and practiced way”. There was also an application for enhancement although the trial judge decided to adopt normal sentencing considerations without resorting to OSCO, which approach resulted in the following comments by the Court of Appeal:

“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.”

22.Yip Wai Leung (supra) is a more serious case, as pointed out by Ms Chow, and there was also an application for enhancement under OSCO by the prosecution. There was no such application in the present case.

23.However distasteful the applicant’s behaviour might be, restraint must be exercised and sentencing guidelines followed to avoid ever-increasing sentences in criminal cases.

24.Viewed in the light of sentences in other similar cases with identical aggravating factors, the three-year starting point adopted by the judge is manifestly excessive and a more suitable one should be 30 months. The applicant is of course entitled to the one-third discount for his guilty plea.

25.We grant leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allow the appeal by reducing the sentence from 2 years to 20 months.

Ms Margaret Lau, PP of the Department of Justice for the Respondent.

Ms Monica Chow instructed by Messrs Cheung & Yip assigned by the Director of Legal Aid for the Applicant.