HKSAR v. Pham Bich Thuy and Others

[English Translation – 英譯本]
CACC 217/2009

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 217 OF 2009

(ON APPEAL FROM DCCC NO.351 OF 2009)

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Before: Hon Tang VP & Yeung JA in Court

Date of Hearing:    13 January 2010

Date of Judgment: 13 January 2010

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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)

1.Each of the three defendants Pham Bich Thuy, Tran Thu Huyen and Pham Cong Binh has many previous criminal convictions of theft. On 20 September 2008, the three defendants committed crime at the Gateway Arcade, Harbour City, Tsim Sha Tsui. After they had identified a Madam Tsin as their target, Tran Thu Huyen and Pham Cong Binh stood on the left and right of Madam Tsin respectively while Pham Bich Thuy put her hand into the handbag of Madam Tsin from behind and took away Madam Tsin’s cell phone. Having pulled the job, the three defendants attempted to get away at once but was intercepted and arrested by the police officers witnessing the course of events of the incident.

2.On 16 June 2009, the three defendants pleaded guilty to one count of theft before Deputy District Judge Sham and were each sentenced to 26 months’ imprisonment.

3.Referring to the starting point laid down in R v Saldana Alca Jose (CACC 655/1996) by the Court of Appeal, Deputy Judge Sham was of the view that pickpocketing committed in an organized manner and involving multiple pickpockets, even without an international element, should properly attract a starting point of at least 2 ½ years’ imprisonment.

4.Deputy Judge Sham reiterated that the three defendants had many similar previous convictions and the sentences hitherto imposed on them have had little or no deterrent effect.  In order to stop them from seriously jeopardising the interests of the Hong Kong residents and the general public anymore, Deputy Judge Sham decided that a further term of 9 months should be added to the basic starting point of 2 ½ years’ imprisonment, thus reaching a starting point of 39 months’ imprisonment. Deputy Judge Sham gave ⅓ discount for the three defendants’ pleas of guilty and the sentence became 26 months’ imprisonment for each of the three defendants.

5.At the time of sentencing, Pham Bich Thuy was serving a term of imprisonment of 16 months for another case of the same nature. Deputy Judge Sham ordered that 20 months of the 26 months’ imprisonment were to be served consecutive to the 16 months’ imprisonment term that Pham Bich Thuy was serving.

6.All three defendants, represented by counsel Mr. Wong Hay-yiu, seek leave from this Court to appeal against sentence.

7.Mr. Wong submitted that the starting point of 30 months adopted by Deputy Judge Sham was clearly too high. When he added 9 more months to reach 39 months by reason that the three defendants were persistent offenders, it not only amounted to double counting, but also made the sentence manifestly excessive.

8.Mr. Wong relied on HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, HKSAR v Wong Kai Chun（香港特別行政區訴王界珍）[2005] 2 HKLRD 546 and HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894 in support. Mr. Wong stressed that the facts of the present case were similar to those in HKSAR v Liao Mei and others (CACC 423/2004). In that case, even where the sentence was enhanced by ⅓ under the Organized and Serious Crimes Ordinance, the overall sentence upon pleas of guilty of the defendants was only 26 months’ imprisonment.

9.In the case of Ngo Van Huy, the Court of Appeal had laid down sentencing guidelines for “pickpocketing” offences. The Court of Appeal was of the view that the guideline sentence of 12 ─ 15 months’ imprisonment after trial was appropriate for a fresh offender who committed the offence alone, and the sentence would be enhanced if aggravating factors existed. Aggravating features include:

(1)   The use of a weapon to assist in the commission of the offence, or, worse still, injuries inflicted on the victim;

(2)   Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy;

(3)   If the accused commits the offence in conjunction with another, especially where he is part of “an organized and professional ring of pickpockets”, a substantial increase in sentence may be called for.  In the case of pickpockets frequenting HK from overseas to commit crime, a starting point of at lease 2½ years’ imprisonments should be adopted;

(4)   Where the accused is a repeat offender or, worse still, a persistent one, the degree of the accused’s criminality would be better measured by a heavier sentence.

Discussion

10.The Court has emphasized repeatedly that ‘pickpocketing’ is a particularly grave crime.  This sort of crime does not only lead to the victims suffering financial loss, they might also resulting in the victims losing their travel documents, proofs of identity, credit cards or ATM cards etc and thereby causing the victims significant degree of inconvenience.

11.The scene of crime of the present case was the Gateway Arcade, Harbour City, Tsim Sha Tsui.  It is well known that the arcade is huge in size and it has a great number of shops.  During long holidays, it always attracts tens of thousands of customers, especially people coming from the Mainland to Hong Kong for vacation or shopping.

12.Obviously, the three defendants had chosen these tourists as their prime target, waiting for an ideal opportunity to steal from them their valuables when they were immersed in the joy of shopping.  The defendants surely knew that these people might be carrying a lot of cash.  To the defendants, their commission of offence might bring them huge gains.  The Court must make it clear that the crime of “pickpocketing” with travellers from the Mainland chosen as prime target brings upon Hong Kong particularly adverse reputation and there is also increased prevalence of this type of crime.  The Court is of the view that this type of crime calls for heavy sentences, especially for persistent offenders for the deterrent effect.

13.The three defendants were not only professional pickpockets, they committed the offence in conjunction with each other.  Again, the Court must emphasize that Pham Bich Thuy has 23 previous convictions with 22 similar; Tran Thu Huyen has 18 previous convictions with 17 similar, while Pham Cong Binh has 21 previous convictions with 15 similar.  Their records of conviction demonstrate that after they had entered into adulthood, they offended continuously without a break and the sentences hitherto imposed on them have had no deterrent effect.

14.Given the background of the present case, in particular the criminal record of the three defendants and their modus operandi in their commission of the crime, the starting point of 39 months’ imprisonment adopted by the trial judge was not manifestly excessive and the Court is not minded to disturb it.  The Court would like to further point out that, if there is an increasing trend of this sort of crime and the sentences previously imposed do not have sufficient deterrent effect, the Court will surely adopt harsher measures to combat the crime so as to prevent the situation from deteriorating any further.

15.The Court dismisses the three defendants’ applications for leave to appeal.

Miss Mary SIN Pui-ha, Senior Director of Public Prosecutions of the Department of Justice, for the HKSAR.

Mr. Wong Hay Yiu, instructed by the Legal Aid Department, for the 1^st, 2^nd and 3^rd Defendants.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.