HKSAR v. Wong Kang Sun

CACC 265/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 265 OF 2013

(ON APPEAL FROM DCCC 449 of 2013)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the Court):

1.At shortly before 6:00 pm on 24 March 2013, the appellant was observed by a plainclothes police officer outside a fish stall on the ground floor of Pei Ho Street market in Sham Shui Po.  The market was crowded at the time and the appellant appeared to be paying attention to the personal belongings of those around him.  He was then seen to follow a male who was carrying a backpack, open the zipper of one of its outer pockets and remove something.  He was immediately intercepted by the police officer and in his hand was found a cardholder containing two staff cards belonging to the owner of the backpack.  The appellant was arrested and cautioned, whereupon he admitted that he had stolen the property because he did not have any money.

2.To these facts the appellant pleaded guilty before HH Judge Anthony Kwok in the District Court.  He was sentenced to 18 months’ imprisonment, from which sentence he now appeals with leave of the single judge.

3.At the time of the offence, the appellant was one month short of 60 years of age.  Astonishingly, he had amassed 58 previous convictions over the years during no less than 41 court appearances; 24 of those convictions being for theft and another 6 for pickpocketing.  However, his last conviction for pickpocketing (or, more strictly, attempted theft) was in January 2007 when he had been sentenced to 10 months’ imprisonment.  The appellant was a former heroin addict, who was still taking methadone.

4.In arriving at his sentence, the judge agreed with defence counsel’s submission that the appellant’s crime was opportunistic. He accepted it was not sophisticated, describing it as “basic, simple pickpocketing” in which the appellant had acted alone and without using any implement to carry out the crime.

5.He considered the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 where this Court, differently constituted, had indicated that an appropriate starting point for such an offence would be in the range of 12 to 15 months’ imprisonment after trial for a first offender.  The judge adopted a starting point at the top of that range, having explained to counsel during mitigation that once a defendant could no longer be described as a first offender, he would immediately adopt an initial starting point of 15 months’ imprisonment. 

6.Bearing in mind what he described as the appellant’s “appalling” criminal record, the judge then enhanced the starting point by 9 months, and a further 3 months in view of the fact that the offence took place in a crowded market place at a busy time of day.  Accordingly, he arrived at an ultimate starting point of 27 months’ imprisonment.  Allowing the appellant a full one third discount for his plea, the judge then sentenced him to 18 months’ imprisonment.

7.In presenting the appeal on behalf of the appellant, Mr PY Lo argues essentially two grounds of appeal: first, that the enhancement of sentence by 9 months for the appellant’s criminal record was manifestly excessive, given that it represented a 60% increase in sentence from the initial starting point; secondly, that the further enhancement of 3 months in respect of the crowded location where the offence was committed had led to an overall enhancement of 80% from the initial starting point, resulting in an overall manifestly excessive sentence.

8.Mr Lo appeared to accept the adoption of a 15 month starting point in view of the fact that the appellant was a recidivist but cautioned that in doing so, one must be careful not to double count by then enhancing the sentence for the same factor which had led to the adoption of a starting point at the upper end of the appropriate range.  He cited HKSAR v Chiu Suet Yee, Angel (unrep) CACC 105/2010 in support of the proposition, although it is clear that the Court in Ngo Van Huy was also concerned with the issue of double counting.

9.The difficulty which Mr Lo faces in attacking the enhancements of 9 months and 3 months respectively is that the Court in Ngo Van Huy, which is the relevant guideline authority in this area of sentencing, itself adopted the very same enhancements as did the judge in the present case to a base starting point of 15 months’ imprisonment for essentially the same reasons (see para 10 (1), (2) and (3) of the judgment in Ngo Van Huy).  The judge can hardly be criticised for enhancing the sentence by the same margins approved by the Court in Ngo Van Huy in similar circumstances (the appellant in that case having 35 previous convictions during 27 court appearances, 17 of those convictions being for theft or attempted theft; and committing the offence at a crowded junction in Mongkok).

10.Accordingly, we do not accept the argument that the overall enhancement is disproportionate to the basic starting point thereby resulting in a sentence which is manifestly excessive.  Pickpocketing is by its very nature a sly and furtive offence which is difficult to detect.  The courts must necessarily come down harder on those who make a habit or living out of such conduct. 

11.However, where we think Mr Lo might have been on better ground was in challenging the initial starting point adopted by the judge.  The appellant in Ngo Van Huy was described by the trial judge as “a professional pickpocket”.  Given the circumstances of that offence, it was clearly premeditated and expertly executed in a busy, crowded area of Hong Kong. As a result, he was at the receiving end of a further enhancement under section 27 of the Organised and Serious Crimes Ordinance, Cap 455.

12.The appellant before us, although no stranger to pickpocketing, committed an offence which the judge described as unsophisticated, in circumstances which he accepted were opportunistic.  Although it was a matter of chance, since the appellant would not have known what was in the outer pocket of the backpack, the value of the items stolen was minimal, although their loss would, as with all pickpocketing offences, have caused significant inconvenience to the victim.

13.In our judgment, if one looks at the circumstances of the offence itself (leaving aside aggravating features such as the offender’s antecedents), and if one accepts the way the judge was prepared to characterise this example of the offence, then it is difficult to see that an initial starting point at the top of the 12 to 15 months’ imprisonment range was appropriate.  If one adopts, as the judge expressly said he did, a starting point of 15 months’ imprisonment, simply because a defendant is a recidivist, then one must be careful that one does not double count this factor when assessing any enhancement of sentence by virtue of the defendant’s criminal record. 

14.With respect, we think that it is here that the judge may have fallen into error.  Indeed, Mr Raymond Cheng for the respondent accepted as much, although he argued that the 15 months’ starting point was otherwise appropriate to the circumstances of this particular theft.  However, as we have said, given the way the judge was prepared to look at this particular offence, we cannot agree that 15 months’ imprisonment was an appropriate starting point before a consideration of any aggravating features.

15.In the circumstances, we consider that an appropriate starting point in respect of this particular example of the offence would have been 12 months’ imprisonment, which the judge would have been entitled to enhance for the reasons he gave by a further 9 months and 3 months; thus making a resulting starting point of 24 months’ imprisonment.  Allowing a discount of one third from that starting point, the sentence would have been 16 months’ imprisonment.

16.Accordingly, we allow the appeal and substitute for the sentence of 18 months’ imprisonment a sentence of 16 months.

Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr P Y Lo, instructed by Messrs C S Chan & Co, for the applicant