HKSAR v. Tsui Chiu Kwai

CACC 452/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 452 OF 2011

(ON APPEAL FROM DCCC NO. 965 OF 2011)

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BETWEEN

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Before: Hon Stock VP and Fok JA in Court

Date of Hearing: 18 May 2012

Date of Judgment: 18 May 2012

Date of Handing Down Reasons for Judgment: 25 May 2012

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

1.This was an application for leave to appeal against sentence. At the conclusion of the hearing, we dismissed the application and indicated that we would hand down our reasons in due course, which we now do.

The facts relating to the offence

2.On 17 October 2011, the applicant pleaded guilty to a charge of theft and was sentenced to 20 months’ imprisonment by Deputy District Judge Casewell.

3.The case giving rise to the charge was a simple one of pickpocketing.

4.The facts were that, at around 5:40 pm on 6 August 2011 in the vicinity of Cheung Wong Road Market in Mong Kok, the applicant was observed by a patrolling police officer removing a roll of banknotes from the trouser pocket of a Madam Lau, a woman of 73 years of age, who was shopping in the market at that time.  The applicant was seen putting the banknotes into his own trouser pocket and making off, and he was immediately intercepted and arrested by the officer.  The banknotes, totalling HK$380, were found in the applicant’s trousers and identified by Madam Lau as her property.

5.In a statement under caution, the applicant admitted the offence.  At trial, he was convicted on his plea of guilty.

The Judge’s Reasons for Sentence

6.In his Reasons for Sentence, the Judge noted that the applicant was 49 years of age, educated to Primary 6, who worked intermittently as a decoration worker.  The Judge noted that the applicant was obviously a drug addict and, based on his record of previous convictions, a professional pickpocket.

7.In mitigation, the Judge took into account that the applicant had acted alone, using no sophisticated methods.  It was, said the Judge, “a crude form of pickpocketing” and the amount taken was small.

8.On the other hand, the Judge noted that the offence was committed in a crowded area and showed signs of being a professional style offence.

9.As a starting point, the Judge considered that 15 months’ imprisonment was appropriate.  He increased this starting point in respect of two aggravating factors, namely the applicant’s poor criminal record for this type of offence and the crowded area where the applicant committed the offence.  In respect of these two factors, he increased the sentence by a period of 12 months’ and 3 months’ imprisonment respectively, resulting in a total sentence attributed to the aggravating factors of 15 months’ imprisonment.  Adding that to the starting point of 15 months’ imprisonment resulted in a sentence before mitigation of 30 months’ imprisonment.

10.Giving the applicant a one-third discount in respect of his plea, the final sentence imposed by the Judge was one of 20 months’ imprisonment.

The application for leave to appeal

11.In the Perfected Grounds of Appeal against Sentence, the applicant sought to advance three grounds of appeal.

12.The first ground was that the Judge erred in having enhanced the initial starting point by an additional 12 months on account of the applicant’s previous record when, it was contended, the authorities suggested that the enhancement on account of such aggravating feature should be one of 9 months only.  The case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 was relied upon in support.

13.The second ground was that the overall sentence of 30 months adopted by the Judge before credit for the plea was manifestly excessive.  Again, Ngo Van Huy was relied upon in support.

14.The third ground was that the ultimate sentence of 20 months’ imprisonment after plea was manifestly excessive in all the circumstances having regard to the facts that: the applicant committed the offence alone; the value of the stolen property was relatively small; no tool or sophisticated method was used; and no international element was involved.

Analysis

15.The Judge’s initial starting point of 15 months’ imprisonment was, rightly, not the subject of challenge in this application.  In Ngo Van Huy, the Court of Appeal laid down sentencing guidelines for pickpocketing offences.  The guideline sentence of 12 to 15 months’ immediate custodial sentence after trial was held to be appropriate for first time offenders: see §9(2).  As to where within that range the starting point should be is a matter for the Judge’s discretion.  In HKSAR v Chiu Suet Yee, Angel, unrep., CACC 105/2010, 27.10.10, it was held (at §11) that the initial starting point will depend on the facts of the case, including matters such as the age or vulnerability of the victim. Here, where the victim of the offence was a 73-year-old woman, the Judge’s choice of an initial starting point of 15 months was entirely appropriate.

Enhancement on account of previous record

16.In Ngo Van Huy, Ma CJHC (as he then was), speaking for the Court of Appeal, identified “[w]here the accused is a repeat offender or, worse still, a persistent one” as being included in the aggravated features which a sentencing judge may take into account (§9(4)(d)).  At §9(5), he said:

“We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature. It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences. … Rather, the accused would simply not receive any discount from which a person of clear record might benefit. This has now changed. 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 … . Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence …”.

17.The Court considered that a substantial increase on the starting point of 15 months must be imposed “on account of the appellant’s appalling previous record for theft” (§10(2)). That record was set out as follows:

“3. The appellant has a long list of previous convictions. It is quite an appalling one. Since 1989, he has been before the Magistrates Courts on 27 occasions in relation to some 35 offences. Of these offences, 17 have been for theft or attempted theft. Others have included assault, contempt of court, unlawful possession of dutiable goods, possession of dangerous drugs and unlawful detention of another person. The types of sentences he has received for the theft related offences include prison sentences ranging from 3 months to 18 months. Also striking in this context is the fact that he is still aged only 34 and although his previous convictions have spanned the last 15 years, he has been convicted for an offence on each of those years. This year is no exception. The appellant is clearly a habitual criminal and the sentences hitherto imposed on him have had little or no deterrent effect.”

18.The Court held that the need for a deterrent sentence for the appellant as well as the protection of society dictated that, notwithstanding the fact that what was involved in that case was the theft of a mobile telephone worth $3,680, there should be added another 9 months (§10(2)).

19.Mr Norton Pang, counsel for the applicant, submitted that, although the applicant admitted having an appalling criminal record, that record was not as bad as, or worse than, that of the appellant in Ngo Van Huy.  Therefore, he submitted that the Judge erred when he added an extra period of 12 months instead of one of 9 months to the initial starting point of 15 months.

20.It is necessary at this point to examine the applicant’s previous record.

21.In the present case, the applicant, who was just shy of 49 at the time of the offence, had 30 previous criminal convictions involving 32 charges.  21 of those convictions were theft related and 9 of them were for pickpocketing.  His other convictions were, for the most part, related to dangerous drugs.  The applicant’s earliest conviction, which was his first for pickpocketing, was in 1981 when he was 18.  From 1981 onwards, there were regular convictions and, in the years from 2002 to 2011, there was at least one conviction per year, with the exception of 2009 for the greater part of which he was incarcerated for his eighth pickpocketing conviction.  Also in that period from 2002 to 2011, the applicant committed six of the nine pickpocketing offences, the details of which are:

Offence	Date of sentence	Sentence (all for pickpocketing except where indicated)
(1)	10 February 2003	10 months’ imprisonment
(2)	28 March 2003	10 months’ imprisonment, 4 months concurrent with sentence for (1)
(3)	30 August 2005	10 months’ imprisonment
(4)	25 September 2006	8 months’ imprisonment (for attempted pickpocketing)
(5)	30 October 2008	18 months’ imprisonment
(6)	23 February 2010	18 months’ imprisonment

22.It is to be noted that the present offence was committed less than two months after the applicant was last released from prison on 15 June 2011.

23.In the circumstances, the Judge was quite right, in our view, to say in sentencing:

“16. So, the defendant is a professional pickpocket, with increasingly lengthier sentences, culminating in 2010 with the sentence of 18 months’ imprisonment from the District Court for Theft (Pickpocketing).

…

24. The defendant has a poor criminal record for these offences.  The two most recent sentences of 18 months’ imprisonment did not appear to deter the defendant from continuing this form of offending.”

24.Given the defendant’s poor criminal record and the failure of the previous sentences of 18 months’ imprisonment to deter him from re-offending, we are quite satisfied that the Judge was entitled to increase the initial starting point by 12 months in respect of the applicant’s previous record.  That this was slightly more than the 9 month increase in Ngo Van Huy’s case is not determinative.  There is no authority to support the proposition that an uplift of 9 months is a maximum or that the relevant previous record must be worse than the appellant’s in Ngo Van Huy by a particular factor in order for a larger increase to be applied.  In any event, the applicant’s re-offending within two months of his release from prison would independently justify an additional increase to that for being a persistent offender.  In HKSAR v Pham Thai Van Bao, unrep., CACC 206/2010, 5.11.10, the Court of Appeal increased a starting point for a sentence for pickpocketing by 3 months to reflect the fact that the applicant in that case had re-offended within two months of his release from a previous sentence for pickpocketing.

25.It has been said many times that sentencing is an art and not a science.  A failure to attain precise or empirical relativity from case to case does not mean that a sentencing judge has erred in principle. In the present case, the Judge applied the appropriate principles and exercised an appropriate sentencing discretion in fixing the amount of the increase at 12 months.

Overall sentence of 30 months before mitigation

26.As indicated above, the overall sentence of 30 months was arrived at by aggregating the initial starting point of 15 months, adding 12 months in respect of the applicant’s previous record and a further 3 months in respect of the crowded area where the applicant committed the offence.  This latter increase is fully supported by the Court of Appeal’s judgment in Ngo Van Huy: see §10(3), where it was held:

“There also exists the aggravating feature that the offence was committed in a crowded area. The junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening. We would therefore add another 3 months to the sentence.”

27.Mr Pang’s submission under this proposed ground of appeal was again based on Ngo Van Huy’s case.  He pointed to the fact that in that case, the Court of Appeal arrived at an overall sentence, before enhancement under the Organized and Serious Crimes Ordinance (Cap. 455) of 27 months: see §10(4).

28.In Ngo Van Huy, the appellant had stolen a mobile telephone worth $3,680.  As in the present case, the appellant had committed the offence alone in a crowded area and without the use of any tool, weapon or sophisticated method.  Mr Pang drew attention to the fact that the property stolen in the present case was cash of $380, a relatively small amount and less than the value of the mobile telephone.  He submitted that the circumstances of the present case were not worse than those in Ngo Van Huy and therefore the overall sentence of 30 months was manifestly excessive.

29.We were quite satisfied that there was no merit in this proposed ground of appeal.  There is nothing in Ngo Van Huy that suggests the overall sentence before mitigating factors should not go beyond 27 months’ imprisonment.  Each case must depend on its own facts and, on the facts of the present case, we do not regard the overall sentence of 30 months to be wrong in principle or manifestly excessive.

Whether ultimate sentence manifestly excessive

30.The applicant’s contention under the third proposed ground of appeal was that the ultimate sentence is manifestly excessive.  It was submitted, on behalf of the applicant, that the ultimate sentence of 20 months’ imprisonment was manifestly excessive in all the circumstances when compared with the cases of HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Chan Mei Yee Carman [2010] 4 HKC 571 and HKSAR v Chiu Suet Yee Angel (supra).

31.We did not consider that there was any substance in this contention.  The facts of each of those other cases are necessarily not identical to those in the present case.  Thus, whilst the appellants in those cases acted with an accomplice and in some cases used a simple tool or device to assist in the pickpocketing, such as a newspaper or flyer, their previous records were not as extensive as that of the applicant in this case.  In fact, we consider that the ultimate sentences imposed in those cases (20 months’ imprisonment on a guilty plea in Dang Van Tuan; 30 months’ imprisonment after trial in Chan Mei Yee Carman; and variously 18, 21 and 27 months’ imprisonment on a guilty plea in Chiu Suet Yee Angel) support the appropriateness of the ultimate sentence in the present case.

32.By way of comparison, Ms Vinci Lam, Senior Public Prosecutor, referred to the sentence in Pham Thai Van Bao (supra) where the appellant, acting alone, stole a wallet (containing the victim’s identity card, credit card(s) and cash of HK$220) in a crowded place.  He had 33 previous convictions of which 21 were similar and had committed the offence within two months after his release from prison.  The Court of Appeal held that the appropriate sentence on his guilty plea should be one of 20 months’ imprisonment, which is the same as the ultimate sentence here.

33.In these circumstances, we were satisfied that the ultimate sentence of 20 months’ imprisonment in this case was not manifestly excessive as contended by the applicant.

Conclusion

34.For these reasons, we dismissed the application for leave to appeal against sentence.

Mr Norton L T Pang, assigned by the Legal Aid Department, for the Applicant

Ms Vinci Lam SPP, of the Department of Justice, for the Respondent (HKSAR)