HKSAR v. Cortes Ramon Miguel

[English Translation - 英譯本]
HCMA 858/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 858 OF 2011

(ON APPEAL FROM KCCC NO. 4344 OF 2011)

_______________________

BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 1 March 2012

Date of Judgment: 1 March 2012

Date of Reasons for Judgment: 6 March 2012

REASONS FOR JUDGMENT

Background

1.The Appellant was charged with 3 counts of theft, contrary to Section 9 of the Theft Ordinance, Chapter 210, Laws of Hong Kong. The Appellant pleaded guilty to all the charges and was sentenced to 16 months’ imprisonment by the magistrate.

2.The Appellant appealed against the sentences. After hearing, I dismissed the appeal. Below are my reasons.

Admitted facts

3.In the present case the Appellant stole from 3 victims on different dates in the following chronological order: charge (3), charge (2) and charge (1).

4.I adopt the facts of the case as set out by Miss Hermina NG, Acting Senior Public Prosecutor for the Respondent, as follows:

“ Charge 3

4. At about 5 p.m. on 2 October 2011 the victim took a seat in the Food Court of Silvercord, Canton Road and placed her rucksack behind her on the chair. At about 6 p.m. when she was going to leave, she found that the rucksack had gone missing. Closed-circuit television footage showed that it was the Appellant who took away her rucksack. There were various items (including the victim’s identity card, cash, China Re-entry card, bank card, etc) in the rucksack, worth about 1,126 Hong Kong dollars in total. All the lost property could not be recovered.

Charge 2

5. At about 4:30 p.m. on 13 October 2011 the victim and his friend(s) patronized Tiffany Bar in InterContinental Grand Standford Hotel, Mody Road. The victim placed his rucksack behind him on the chair. At about 6:44 p.m. the victim found that the rucksack had gone missing. Closed-circuit television footage showed that it was the Appellant who took it away. There were various items (including the victim’s identity card, notebook computer, wallet, bank cards and passbook, etc) in the rucksack, worth about 20,000 Hong Kong dollars in total. All the lost property could not be recovered.

Charge 1

6. On 11 November 2011 the victim patronized Panash Bakery & Café in Harbour City, Canton Road, with her family and placed her handbag on a stroller next to her, leaving it unattended. At about 8:20 p.m. the same day the Appellant, with the victim’s handbag in his hand, was intercepted by the police for enquiries at the junction of Peking Road and Hankow Road. The Appellant admitted stealing the victim’s handbag in Panash Bakery & Café earlier. There were various items (including the victim’s identity card, bank cards and mobile phone, etc) in the victim’s handbag, worth about 9,302 Hong Kong dollars in total. The lost property was recovered.”

The Appellant’s background and mitigation

5.The Appellant did not have any record of criminal conviction. He is 65 years old, divorced, in the garment trading business. He originally came to Hong Kong to source for his business. However, he spent all his money and thus committed crimes in desperation.

Reasons for sentence

6.The magistrate took into account the Appellant’s repeated commission of 3 offences of theft in a short space of time. All 3 cases happened in Tsim Sha Tsui where there were many tourists. There was a certain level of “sophistication” in the Appellant’s modus operandi. The total value of stolen property exceeded 30,000 Hong Kong dollars which was not a small amount. The magistrate was also satisfied that by stealing the victims’ personal documents and bank cards, etc the Appellant must have caused considerable trouble and inconvenience to the victims. The magistrate said that he did not overlook the Appellant’s previous clear record in Hong Kong. The stolen property in charge (1) was recovered. Also, the Appellant pleaded guilty to the offences showing his remorse.

7.The magistrate took the view that the Appellant’s modus operandi was of the pickpocketing form of theft. Having considered the facts of the case, the magistrate decided to take a deterrent sentencing approach.

8.The magistrate was of the view that it was more appropriate to impose concurrent sentences and he adopted an overall starting point for the 3 charges, namely, 24 months’ imprisonment, which was higher than would be the starting point for a single charge. Giving the Appellant a one-third discount on account of the guilty pleas, the magistrate sentenced the Appellant to 16 months’ imprisonment for each charge, the sentences to run concurrently.

Grounds of appeal

9.Mr. Andy HUNG, counsel for the Appellant, relying on the case of Ngo Van Huy[1], submitted that even if it was an overall starting point for 3 charges, in adopting 24 months the magistrate obviously departed from the sentencing guidelines in Ngo Van Huy. His argument was that in respect of a single charge, the sentence for each charge with the aggravating factor of commission of the offence in busy tourist spots should be 15 months. The overall starting point of 24 months adopted by the magistrate was therefore excessive.

10.Mr. HUNG, also citing the cases of Cho Kwun Wah[2] and Lo Ching Fai[3], submitted that it was right for the magistrate to have taken into consideration the overall starting point of sentence but the starting point was too high.

11.Mr. HUNG submitted that the overall starting point of sentence should not exceed 18 months, be they concurrent or consecutive sentences, and that the appropriate sentence was 12 months.

The Respondent’s reply

12.The Respondent, also relying on Ngo Van Huy and citing the cases of Chiu Suet Yee, Angel[4] and Liu Lin-feng[5], submitted that the starting point for each count was 18 months and not 15 months. As the Appellant was involved in 3 charges, 16 months’ imprisonment was not manifestly excessive.

Legal principle

13.The Court of Appeal had laid down sentencing guidelines for pickpocketing offences in the case of Ngo Van Huy as follows (at paragraph 9 of the judgment):

“…

(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, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 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, CACC 655/1996, 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, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.

…”

The gist is that for a first offender the starting point for an immediate custodial sentence ranges from 12 to 15 months. Indeed, it is necessary for the court to have regard to whether there are any “aggravating” or “mitigating” features. “Aggravating” features include the use of a weapon, commission of the offence in places where the pedestrian traffic is heavy, acting in concert with others and the fact that the accused is a persistent offender, etc.

14.As to at which point in the starting point range of 12 to 15 months the court should commence before taking into account aggravating factors, the Court of Appeal had the following analysis in Chiu Suet Yee, Angel:

“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.”

It means the court should have regard to the facts of the case (but not aggravating factors) including the value of the property stolen, the age of the victim and modus operandi, etc. In determining where in the range of 12 to 15 months it should commence, the court should avoid taking into consideration “aggravating” factors thereby resulting in “double counting”.

15.With regard to how to deal with sentencing in respect of a number of charges, the Court of Appeal had the following explanation in Zhou Jianguo & Anor[6]

“18. As this court has said on a number of occasions, the proper approach to be taken by a sentencing judge dealing with a number of offences is to decide, first and foremost, on a proper starting point for each offence. For this purpose, it is not appropriate to take a global view. The sentence for each offence needs to be looked at separately. After this has been done, the sentence must, in appropriate circumstances, be reduced to take into account the mitigation. The final step is to deal with totality.”

It means the court should consider the proper sentence for each charge separately and then consider whether there are mitigating factors before finally dealing with the totality of sentence.

16.In the case of Cho Kwun Wah the Honourable Mrs Justice V. Bokhary of the Court of First Instance of the High Court had this to say at paragraph 13:

“ But, as was pointed out by the Court of Appeal in England in R v Smith [1975] Crim.LR 468, a series of short sentences should be avoided. It is legitimate to impose concurrent sentences even in respect of discrete offences provided that one bears in mind, when imposing concurrent sentences in such circumstances, that the increased criminality arising out of the fact of repeated offences would have to be reflected in a total sentence which is higher than would be the sentence for a single or smaller number of offences: see R v TONG Hoi-fung [1988] 1 HKLR 610 at page 611; AG v LO Ching-fai [1996] 1 HKC 747 at page 750; and R v KWOK Chi-keung [1993] 2 HKCLR 294 at page 297.”

This means that a series of short sentences should be avoided. Concurrent sentences may be imposed even in respect of offences not arising out of the same incident provided that there is a higher starting point to reflect the increased criminality of multiple offences.

17.The present case does not involve multiple short sentences. In my view the proper approach is to follow the case of Zhou Jianguo. The magistrate should consider each charge separately.

18.Moreover, in the case of Lo Ching Fai, the Court of Appeal said:

“16. As is generally the case, it does not matter whether one arrives at that overall starting point by way of concurrent sentences or by way of consecutive sentences.

17. If the sentences are made concurrent, then each term must be higher than it would be if it were set for one offence only.

18. If, on the other hand, the sentences are made consecutive, then each term must be scaled down to avoid an excessive total.”

This means generally speaking, it does not matter whether the overall starting point is fixed by way of concurrent sentences or consecutive sentences. If the sentences are to run concurrently, then each term must be higher than would be the term for one single charge. If the sentences are to run consecutively, then each term must be reduced to avoid an excessive total sentence.

19.The Appellant is a first offender. He committed the 3 offences with the same modus operandi. Catching the victims off guard at the moment, he took the opportunity to steal their property. This can be regarded as a professional modus operandi with premeditation. Furthermore, the properties of 20,000 odd dollars involved in charges (2) and (3) have not been recovered. Applying the cases of Ngo Van Huy and Chiu Suet Yee, Angel mentioned above, the appropriate starting point for each charge, before taking into consideration the aggravating factors, should be 15 months.

20.All the 3 charges occurred in restaurants in busy crowded public places in Tsim Sha Tsui. This is indeed an aggravating factor. The starting point for each charge should be scaled up by at least 3 months making one of 18 months.

21.Apart from his guilty pleas, there were no strong mitigating factors available to the Appellant. With the one-third discount given on account of the guilty pleas, the sentence for each charge is 12 months.

22.Considering the totality of sentence on the basis of the total sentence in the present case being 36 months, I am of the view that the appropriate total sentence should be 20 months.

23.Even if it is appropriate to adopt an overall starting point of sentence in the present case, in view of all the circumstances of the present case ―― in particular the value of the stolen property involved in the case, I take the view that the starting point of 24 months is on the low side. The proper starting point should be 2½ years. Giving the Appellant a one-third discount for his guilty pleas, the sentence is still 20 months.

24.As regards the 16 months’ imprisonment currently imposed on the Appellant, not only is the sentence not manifestly excessive, it is even not slightly excessive. It can be said the Appellant was fortunate to have been imposed a lighter sentence of 16 months’ imprisonment.

25.I had considered whether I should, with the power vested in me under Section 119 of the Magistrates Ordinance, Chapter 227, Laws of Hong Kong, impose a sentence heavier than the one imposed by the magistrate. Taking into consideration the facts that the Appellant was legally represented, with the grounds of appeal advanced by Mr. HUNG as assigned by the Legal Aid Department, and that the Appellant was given a term which was 4 months less, I decided not to increase the sentence.

26.For the above reasons, I dismissed the appeal.

HUNG Hing-shek, Andy instructed by the Legal Aid Department, for the Appellant.

NG Wing-hin, Hermina, Acting Senior Public Prosecutor, for the HKSAR.

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