HKSAR v. Chiu Suet Yee, Angel

CACC105/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 105 OF 2010

(ON APPEAL FROM DCCC NO. 134 OF 2010)

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Before : Hon Cheung JA and McMahon J in Court

Date of Hearing : 14 October 2010

Date of Judgment : 27 October 2010

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JUDGMENT

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McMahon J (giving judgment of the Court) :

1.The applicant was convicted on her own plea by Toh J in the District Court of five offences of pickpocketing.  She was sentenced to a total of 3 years’ imprisonment.  The sentence was constructed as follows.  For each of the offences subject to Charges 1 to 4 the judge sentenced the applicant to 20 months’ imprisonment, to be served concurrently.  In respect of the 5^th charged offences she imposed a sentence of 2 years’ imprisonment of which 1 year and 4 months was to be served consecutively to the other sentences, thus arriving at a totality of 36 months’ imprisonment.  The applicant now seeks leave to appeal that sentence and also the order made by the judge that it be served consecutively to a sentence of 18 months’ imprisonment the applicant was then serving in respect of a previous offence of pickpocketing.

2.The facts of the present offences were that the applicant and another person (who she later described as her boyfriend) had stolen the wallet of an elderly man in San Hui Market in the New Territories (Charge 5).  Later that day while still in the market the applicant and her boyfriend were seen acting furtively by the police.  They were intercepted and in the applicant’s clothing were found four Octopus cards she had stolen on four separate previous occasions (Charges 1 to 4).  Subsequently the applicant admitted helping her boyfriend steal the wallet.  It was recovered as a result of her description of its place of disposal, though some of its contents, including $1,300 cash, were missing.  The applicant admitted also that she had stolen each of the four Octopus cards on different occasions from the handbags of two women in Yuen Long; on one other occasion from a woman in San Hui Market and on the final occasion from a woman in Hong Lok Road.

3.The judge adopted a starting point of sentence of 30 months’ imprisonment for each of the offences the subject of Charges 1 to 4, reduced to 20 months’ imprisonment for the applicant’s plea of guilty.  Those sentences were ordered to be served concurrently.  For the 5^th charged offence a starting point of 36 months’ imprisonment was adopted, reduced to 24 months on account of the applicant’s plea, with 16 months of that sentence to be served consecutively with the sentences imposed in respect of the offences the subject of Charges 1 to 4.  That resulted in a total sentence of 36 months’ imprisonment.

4.Mr Victor Lee for the applicant advances four admirably succinct grounds of appeal.

5.He says firstly that the starting point of 30 months imprisonment adopted by the judge in respect of each of the Octopus card thefts (Charges 1 to 4) was manifestly excessive.  Secondly, that the starting point in respect of the theft of the wallet (Charge 5) of 3 years’ imprisonment was also manifestly excessive and thirdly that the overall sentence was therefore manifestly excessive.  Finally he says that the total sentence imposed should not have been ordered to be served wholly consecutively to another sentence the applicant was then currently serving.

6.As will be seen we accept Mr Lee’s arguments that the starting points of sentence of each offence were manifestly excessive, but conclude that the totality of sentence eventually imposed for the five offences was not.  We are also satisfied that the judge was wrong in principle to order the present offences to be served wholly consecutively to the sentence the applicant was then serving.

Grounds 1 and 2

7.These two grounds can be dealt with together.  So far as the thefts of the Octopus cards are concerned (Charges 1 to 4), the judge commenced her considerations of the starting point of sentence by reference to the judgment of this court in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 where the court approved the guideline sentence for pickpocketing offences of 12 to 15 months’ imprisonment after trial, a range of sentence originally laid down in R v Vy Van Kien [1991] 1 HKLR 422, and made reference to various factors which would aggravate the sentence and take it above that range.  In Ngo Ma CJHC (as he then was) laid out guidelines (and their rationale) for pickpocketing offences in the following terms :

“9. In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter) :

(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12‑15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include :

(a) The presence or use of a weapon (such as a razor‑blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim) : see Vy Van Kien.

(b) 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.

(c) 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 : see HKSAR v Rang Zhi Tai and Another, unreported, HCMA7/1999, 25 March 1999, Court of First Instance; HKSAR v HoMinhCong, unreported, HCMA547/1999, 23 September 1999, Court of First Instance. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed : see R v Saldana Alca Jose and Another, unreported, CACC655/1996, 19 August 1997. In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :

‘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.’

(d)   Where the accused is a repeat offender or, worse still, a persistent one : see R v Chiang Pok Wing, unreported, HCMA589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA270/2001, 21 June 2001, Court of First Instance.”

It can be seen factors aggravating sentence were stated to include the commission of the offence in crowded public areas (and in the present case the applicant admitted stealing one of the Octopus cards from the San Hui Market; as had been the wallet) and the status of the defendant as a repeat offender.  In respect of that latter aggravating factor the court in Ngo’s case said that substantially higher sentences would be justified, relying on HKSAR v Chan Pui Chi (1999) 2 HKLRD 830 per Stuart-Moore VP at pp. 833.

8.The judge in the present case did not specify at what point within the 12 to 15 months range she commenced her consideration of sentence but simply said in respect of the offences in Charges 1 to 4 that :

“14. So having considered the facts in this case and the sentencing guidelines, and also the defendant’s background, I consider that an appropriate sentence in this case is for the first four charges, in each charge the starting point sentence will be 30 months’ imprisonment, reduced to 20 months because of her plea. These sentences will be served concurrently.”

9.The first issue in the present application (in respect of all offences) is whether the judge was correct in the starting points of sentence she adopted.

10.A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point) a sentencing court should commence.

11.In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors.  Such matters as the value of the property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences.  Each case will be fact sensitive and considerable allowance should be given to the exercise of the sentencing judge’s discretion.

12.In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.

13.In the present case the judge did not specify where in the 12 to 15 months range her considerations commenced.  In arriving at a final starting point of 30 months’ imprisonment (after taking into account various aggravating factors) it can be seen that the judge had doubled the normal starting point, even if her considerations had started at the upper end of the range.  We think Mr Lee is right to complain the starting point was manifestly excessive.

14.In the present case there was nothing to suggest, so far as the actual thefts the subject of Charges 1 to 4 were concerned, that there was anything particularly unusual in their circumstances. In our view an appropriate initial starting point would have been 12 months imprisonment.  The only aggravating factor in the thefts the subject of Charges 2 to 4 was the applicant’s history of such offences. The 1^st charged offence had the additional factor of being committed in the same crowded market as was the 5^th charged offence.

15.In Ngo’s case the appellant had 17 prior theft (or attempted theft) convictions.  That was thought by the court of appeal to warrant an enhancement of 9 months’ imprisonment.  We bear in mind the comment of the court in HKSAR v Duong Van Dung CACC284/2004 at para. 11 that a strict comparison of the number of prior convictions as between cases in assessing the degree of enhancement for a particular offender is unproductive.  Prior to the present offences the applicant had seven convictions for theft.  In our view those convictions taken together with the present offences warrant an enhancement of 6 months’ imprisonment.  Additionally, the 1^st charged offence was committed in a crowded market.  That warrants a further enhancement of 3 months’ imprisonment.  That is the same degree of enhancement adopted by this court in Ngo’s case for the same factor.

16.Accordingly we think the appropriate starting point of sentence for the 1^st charged offence was 21 months’ imprisonment and for the offences the subject of Charges 2 to 4 was 18 months’ imprisonment.  The only mitigation available to the applicant was her plea of guilty.  That results in a final sentence for the offences the subject of Charge 1 of 14 months’ imprisonment and for each of Charges 2 to 4 of 12 months imprisonment.

17.For the 5^th charged offence the judge took a starting point, after considering the further aggravating factor of the applicant working together with her boyfriend, of 3 years’ imprisonment.  For much the same reasons as with the earlier sentences we agree with Mr Lee that this starting point was excessive.

18.On this occasion the victim of the offence was an old man.  We think that justifies taking an initial starting point of 15 months imprisonment.  There were additionally, a number of aggravating factors.

19.They were, similarly to the first four offences, the applicant’s prior convictions which we think warrants the addition of 6 months to that initial starting point and the fact the offence took place in a crowded market warranting an additional 3 months’ enhancement.  The further factor in respect of this offence is that the applicant worked in conjunction with her boyfriend.  That factor warrants a further enhancement of 3 months’ imprisonment.

20.That results in a final starting point of sentence of 27 months imprisonment, reduced after the applicant’s plea to a sentence of 18 months imprisonment.

Ground 3

21.That leaves the question of totality.  A consideration of totality requires a more subjective assessment when compared to the objective approach taken to the starting point of sentence for individual offences.  There is admittedly a logical tension between the more rigorous approach required for the selection of a starting point of sentence for a particular offence and the final more “broad brush” approach required for a decision on the appropriate totality of sentence.  But that illogicality is unavoidable if a final and fair sentence is to be achieved.  Bearing in mind that the appropriate sentence for the 5^th charged offence was 18 months’ imprisonment, we do not think that a doubling of that sentence when a further four offences the subject of Charges 1 to 4 were taken into account, can be considered manifestly excessive.

22.Accordingly, even though the judge’s individual starting points of sentence were in our view too high, the totality of 36 months’ imprisonment she eventually arrived at was appropriate, and ultimately Mr Lee’s submission that the overall sentence imposed was manifestly excessive must fail.

Ground 4

23.At the time of her sentencing for the present five offences the applicant was serving a sentence of 18 months imprisonment for an earlier pickpocketing offence.  She had been sentenced on 4 June 2000 In Tuen Mun Magistracy and when sentenced for the present offences on 10 March 2010 had some 10 months remaining of that sentence (not allowing for any reduction for good behaviour) it having been ordered to run partly consecutively to another even earlier sentence the applicant was serving for theft also imposed in Tuen Mun Magistracy but which, by the date of the imposition of the present sentences, had been served.

24.The offences dealt with on all three sentencing occasions (that is the present offences and the two earlier offences) had all involved pickpocketing offences committed in the period March to April 2009.  The present offences were dealt with in the District Court, and the two other offences in Tuen Mun Magistracy, thereby creating a considerable lapse between the dates of sentencing.

25.The two offences dealt with in Tuen Mun Magistracy had been committed between the present 4^th charged and 5^th charged offences.  All seven offences therefore formed a series and should have been dealt with together.

26.In those circumstances we agree with Mr Lee that the judge was wrong to make the sentence for the present offences run wholly consecutively to the sentence of 18 months being served for the earlier offence.  As we have said that sentence had itself been served partly consecutively to the earlier offence.  We are informed that was to the extent of 3 months.  That earlier offence we understand was one of theft by finding for which the applicant was sentenced to 4 months’ imprisonment, and as we say, that sentence has now been served.  Looking at the overall sentence imposed on the applicant we are of the view that only 3 months of the total sentences imposed in respect of the present offences should be served consecutively to the 18 months sentence imposed on the 4 June 2009.

27.To reflect our reasoning as set out above we allow the application, treat the hearing as the appeal and allow the appeal to the extent that we order that the sentences imposed in respect of Charges 1 to 5 be set aside and that in respect of the offence the subject of Charge 1 the applicant be sentenced to 14 months’ imprisonment; for each of the offences the subject of Charges 2 to 4 the applicant be sentenced to 12 months’ imprisonment and for the 5^th charged offence to 18 months’ imprisonment.  To achieve the totality of 36 months’ imprisonment we order that the sentences imposed in respect of the 1^st and 5^th charged offences be served consecutively and, as to 4 months only, also be served consecutively to the sentence imposed in respect of the 2^nd charged offence.  That is a totality of 36 months’ imprisonment.  Finally, we order that the total sentence of 36 months’ imprisonment imposed in respect of the present offences is to be served concurrently with the sentence imposed on the applicant on 4 June 2009 except for 3 months which are to be served consecutively.

Ms Eva Chan, PP of the Department of Justice, for HKSAR

Mr Victor Lee, assigned by the Legal Aid Department, for the Applicant