HKSAR v. Cheng Sau Yuk

CAC C 495/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 495 OF 2011

(ON APPEAL FROM DCCC NO. 902 OF 2011)

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BETWEEN

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Before: Hon Yeung Ag CJHC and Lunn JA in Court

Date of Hearing: 30 October 2012

Date of Judgment: 30 October 2012

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.The appellant (Cheng Sau-yuk) was sentenced to 4 years’ imprisonment by Judge Browne (the judge) after trial in the District Court upon her conviction on three counts of “theft”.  Represented by Ms Monica Chow, the appellant seeks leave to appeal against sentence, having been granted leave to do so by Yuen JA on 1 June 2012.

The Facts

2.On three separate occasions, the appellant, as a member of a team of professional shoplifters, targeted shops selling luxurious goods in Tsim Sha Tsui area.

3.The 1^st count related “Italy Station” in Hankow Road where a $13,800 bag was stolen from a display on 23 October 2010.  The 2^nd count related to “Chanel” where a $29,100 bag was stolen on 4 November 2010 and the 3^rd count related to “Milan Station” where a $13,000 bag was stolen on 11 December 2010.

4.On each of the three occasions, the appellant, together with two or three accomplices, entered the shops, pretending to be customers, to steal.  They skilfully diverted the attention of the shopkeepers and successfully stole the three bags.

The Appellant’s Background

5.The appellant, aged 43, was married with a 13-year old daughter.  It was said that she was employed as a saleslady with a modest income.  Letters from her employers suggested that the appellant was responsible, hardworking and reliable.  It was also said that the appellant had carried out certain charitable work.

6.The appellant had 15 previous convictions, all involving dishonesty, including theft, obtaining or attempting to obtain property by deception, using/possessing a false instrument and handling stolen goods.  The appellant had been sentenced to terms ranging from 6 months to 5 years’ imprisonment for her previous offences.

The Judge’s Approach

7.The judge took the view that the offences in question were serious and at least comparable to pickpocket offences.  The judge also took the view that the offences committed by the appellant were essentially offences of burglary when she and her accomplices entered the shops for the sole purpose of stealing luxurious items.

8.The judge pointed out that the offences were carried out in a very professional manner, with the appellant and her accomplices playing different roles, and as such their crimes were very difficult to detect despite the shopkeepers’ alertness and the presence of CCTV cameras.  The judge emphasized the fact that the appellant was sentenced to 5 years’ imprisonment in late 2006 and early 2007, and was only released in February 2010, a matter of months before she committed the 1^st offence.

9.The judge adopted a 2-year starting point for each of the three offences and ordered one year of the sentences on the 2^nd and 3^rd counts to run consecutively to the two years on the 1^st count, making a total sentence of four years’ imprisonment.

Grounds of Appeal

10.Ms Chow suggests that the 2-year starting point adopted by the judge for each of the three charges is manifestly excessive. She points out that in R v Vy Van Kien and anr [1991] 1 HKLR 422, the Court of Appeal laid down guidelines of a 12 to 15 months’ starting point for a pickpocket offence partly to reflect its prevalence.  Ms Chow suggests that there was no evidence to suggest that the offences committed by the appellant were prevalent and the implication was that the judge was wrong to have used a 15-monthstarting point and enhanced it by 9 months to 2 years to reflect the appellant’s bad criminal record.

11.Ms Chow refers us to a number of other similar cases, saying that in those cases, the sentences were significantly less than those imposed on the appellant.

12.Ms Chow also emphasizes that three of the appellant’s accomplices had pleaded guilty to four to six charges of theft, some of which were identical to those that the appellant was convicted of, and they were sentenced to terms ranging from 27 months to 34 months’ imprisonment. Ms Chow complains that there is a lack of parity between the appellant’s sentence and those of her accomplices.

Discussion

13.Whilst the judge had referred to sentences in pickpocket and burglary offences, the theft offences committed by the appellant were of a different nature and should be dealt with differently.

14.There are infinite circumstances in which theft can be committed and for that reason, the Court of Appeal had not laid down any sentencing guidelines and each case must be examined on the facts of its own. Sentences imposed in other similar cases may not be particularly helpful.

15.However, we agree with the judge’s observation that the offences committed by the appellant were indeed very serious.

16.The appellant, as part of a professional team of shoplifters, targeted luxury shops and stole expensive items from those shops. Their modus operanti was sophisticated, with careful planning and clinical execution.  They did not do it once, but repeatedly.  But for the diligence and persistency of the police officers, the criminal conducts of the appellant and her accomplices could have gone on unchecked.

17.The appellant had many previous convictions all involving dishonesty.  Clearly the previous sentences imposed on her had failed to deter her.

18.Mr Franco Kuan, for the respondent, helpfully refers us to the judgment of this Court (differently constituted) in HKSAR v Nguyen Anh Cuong (unreported, CACC 414/2011) in which it was held:

“…Indeed, we would not have interfered in the circumstances of this systematic and highly organised gang of professional shop thieves with a sentence of at least 4 years’ imprisonment. It is worth observing that the English Court of Appeal has recently held in R v Cyril Edward Page & Ors [2005] 2 Cr App R (S) 37 (at para 2):

‘Nothing we say is intended to affect the level of sentence appropriate for shoplifting by organised gangs.  When this occurs repeatedly or on a large scale, sentences of the order of 4 years may well be appropriate, even on a plea of guilty.’ ”

19.We also wish to emphasize that Hong Kong, being considered “a heaven for shopping”, has constantly attracted millions of visitors annually, mainly from the Mainland, to visit Hong Kong and very often shopping was an important agenda for those visits.  Most luxury brands consider Hong Kong an important outlet of their goods.

20.The appellant’s conduct seriously undermines the confidence of those luxury brands and indirectly affects the interest of Hong Kong and its visitors.  It must be severely dealt with.

21.Ms Chow refers to sentences imposed on the appellant’s accomplices and suggests there is a disparity.  She suggests that such a disparity supports her argument that the sentence imposed on the appellant is manifestly excessive.

22.The appellant’s accomplices were sentenced by a different judge on a different occasion.  A disparity in sentences imposed on different offenders by different judges on different occasions for the same offence(s) is not, in itself, a ground for an appellate court to interfere with a sentence if the sentence is otherwise appropriate having regard to the nature of the offence and to the offender himself (see R v Leung Hoi [1973] HKLR 238, R v Ngai Sum-tin [1978] HKLR 136, HKSAR v Chow Tak-fuk,unreported CACC 428/2004,  R v Fung Siu-keung [1981] HKLR 608 and HKSAR v Lai Ka Lung, unreported CACC 136/2005).

23.The proper approach to be adopted is to ignore the sentence passed on co-accused by different judges on different occasions and to consider merely whether the sentence actually passed on the appellant is appropriate.  Even if there is a disparity as suggested by Ms Chow, it is not a reason to reduce what is otherwise a proper sentence imposed on the appellant.

24.We have considered the facts of case carefully.  We are not persuaded that the individual sentence or the total sentence of four years imposed on the appellant is a day too long.  The appeal against sentence is therefore dismissed.

Mr Franco Kuan, SPP of the Department of Justice, for the Respondent

Ms Monica Chow, assigned by the Director of Legal Aid, for the Appellant