HKSAR v. Ng Ah Shan

[English Translation - 英譯本]
CACC 358/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 358 OF 2013

(ON APPEAL FROM DCCC 700/2013)

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BETWEEN

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant (Ng Ah Shan) pleaded guilty to four charges of theft before District Judge Sham (the trial judge).  The trial judge sentenced her to imprisonment for 30 months and also ordered her to compensate some of the victims for the loss of their cash money totalling approximately $3,700, such compensation to be paid out of the cash found upon search on the person of the applicant at the time of arrest.

2.Represented by Mr Albert Luk of Counsel, the applicant applied for leave to appeal her sentence.  After hearing, we allowed the applicant’s application for leave to appeal sentence and, treating the hearing as the appeal proper, allowed the appeal and reduced the total term of imprisonment from 30 months to 24 months.  We now give reasons for our decision.

Facts of the case

3.About 6:50 pm on the evening of 8 June 2013 and inside City Super Supermarket at Times Square, Causeway Bay, when the victim Ms Chung was preoccupied with shopping and making purchases, the applicant took the opportunity and stole Ms Chung’s purse from the handbag which Ms Chung had placed on the shopping trolley.  The purse had a value of $6,000 and contained Ms Chung’s identity document(s), bank card(s), Octopus card(s) and cash of HK$3,200 and RMB ¥300.  (Charge 1)

4.Around 8 pm of the same day and inside a shop called Candy Magic in a shopping mall in East Point Road, Causeway Bay, the applicant stole a smart phone with cover case, valued at $5,000, which a saleslady Ms Lee had placed on the table next to the cashier counter.  (Charge 2)

5.About 10 minutes later, inside a shoe shop in the same shopping mall, the applicant stole a purse from a customer, Ms Choi, who was preoccupied with trying on shoes.  The purse contained articles belonging to Ms Choi, such as her identity document(s), bank card(s), Octopus card(s), and cash of $200.  (Charge 3)

6.Around 8:30 pm of the same day, the applicant went to the supermarket inside Sogo Department Store in Causeway Bay where she “shoplifted” by taking goods of a total value of approximately $1,000, including a packet of beef, four packets of cherries, two packets of blueberries, 12 cartons of milk and three boxes of tea, and then leaving the supermarket without paying for those goods.  (Charge 4)

7.The applicant’s act of “shoplifting” was uncovered by Mr Shek, a security officer at Sogo Department Store, following which the applicant was arrested.  Subsequently, the police conducted a search and found on the person of the applicant most of the stolen properties belonging to Ms Chung, Ms Lee and Ms Choi.  The police also seized from the person of the applicant cash of approximately HK$8,000, Renminbi ¥510 and some foreign currencies.

The applicant’s background and grounds of mitigation

8.The applicant, aged 40, was married in 1997 and divorced in 2006.  She has one son and one daughter, aged 15 and 13 respectively, and their custody has been granted to the applicant’s ex-husband.

9.The applicant has 25 criminal records, 24 of which are related to theft offences.  Of the theft-related conviction records, some are for “shop theft” and some “pickpocketing”.  The applicant has been sentenced to imprisonment a number of times for these offences, with the terms of imprisonment ranging from 14 days to 16 months.

10.In April 2012, the applicant was sentenced to imprisonment for 16 months for two counts of “pickpocketing” and two counts of “shop theft”.  Soon after she completed serving that sentence and was released from prison, the applicant committed the theft offences in the present case.

11.The applicant claims that she suffers from depression.  In fact, after committing the aforementioned four offences in April 2012, she also put forward depression as mitigation, and in the end the court ordered that the terms of sentence for the said four charges were be run concurrently.

Trial judge’s reasons for sentence

12.The trial judge considered that Charges 1 to 3 were “pickpocketing” offences, although on the facts the offences involving Ms Lee and Ms Choi could be described as “walking away with another person’s property”.

13.Applying the sentencing guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the trial judge took the view that 15 months’ imprisonment was the starting point applicable to Charges 1 to Charge 3.  The trial judge further considered that, in light of the applicant’s criminal records, the starting point should be enhanced by 9 months to 24 months.  The trial judge adopted six months’ imprisonment as the starting point for the “shoplifting” offence in Charge 4.

14.As the applicant pleaded guilty, the trial judge gave one-third discount to the abovementioned starting points and reduced the sentences to 16 months and 4 months respectively.

15.The trial judge ordered that 6 months of the 16-month term for Charges 2 and 3, and 2 months of the 4-month term for Charge 4 were to be served consecutively to the 16-month term for Charge 1, resulting in a total term of 30 months.

Grounds of appeal

16.Mr Luk, Counsel for the applicant contended that the trial judge should not have treated Charges 1 to 3 as “pickpocketing” offences and enhanced the starting point to 15 months’ imprisonment.  Mr Luk submitted that what the applicant did only amounted to “walking away with another person’s property”, which means taking away properties belonging to  victim who were momentarily inattentive.  Mr Luk contended that as the offences committed by the applicant were not the same as “pickpocketing”, the trial judge should not have adopted the starting point applicable to “pickpocketing” in determining the applicant’s sentence.

17.In his written submission, Mr Luk further pointed out that as the applicant committed all the offences within a period of a few hours, all or most of the terms of imprisonment for those offences should run concurrently.  Mr Luk submitted that at least the trial judge should not have ordered that 6 months of the term for Charges 2 and 3 and 2 months of the term for Charge 4 were to run consecutively to the 16-month term for Charge 1, which resulted in what Mr Luk submitted was a manifestly excessive total sentence of 30 months.

18.Mr Luk also complained that the trial judge was unfair to the applicant in that he ordered the cash found on the person of the applicant to be used to compensate for the victims’ losses but did not grant the applicant any corresponding reduction in sentence.

19.Mr Luk contended that, in the absence of evidence or information in support, the judge should not have regarded the cash seized on the person of the applicant as coming from the victims.

20.Upon consideration, Mr Luk conceded that there was no difference between the offences under Charges 1 and 3 and the offence of “pickpocketing”.  However, he asserted that Charge 2 was akin to the offence of “walking away with another’s person property” and hence should warrant a shorter term of sentence.  Mr Luk also accepted, albeit with some reluctance, that a reasonable inference was that part of the cash found on the person of the applicant came from the victims.

Discussion

21.The offence of theft encompasses a wide variety of acts of dishonestly stealing properties belonging to others.  Some of the theft offences are more serious whilst some are relatively minor, and therefore the Court of Appeal cannot lay down general sentencing guidelines which apply to all theft offences.  That said, clear sentencing guidelines have been laid down by the Court of Appeal in respect of specific theft offences such as “breach of trust”, “pickpocketing” and “burglary”.

22.In the case of Ngo Van Huy, the Court of Appeal laid down sentencing guidelines for the offence of “pickpocketing” committed in public places.  According to those guidelines, the appropriate starting point for the offence of “pickpocketing” committed by a first offender in a public place is immediate imprisonment for 12 to 15 months, and the term of imprisonment will be enhanced if aggravating factors are present.

23.In paragraph 9 of his judgment, Ma CJHC (as he then was) pointed out that the courts have to adopt a robust approach to sentencing in respect of the offence of “pick-pocketing” because, although the offence does not necessarily cause substantial economic loss to the victim, it will bring upon the victim considerable inconvenience.  Ma CJHC emphasized that those acts which invaded the privacy of others in public places could be carried out very easily.

24.Mr Luk initially took the stance that the offences committed by the applicant were merely “walking away with another person’s property” as opposed to “pick-pocketing”.  “Walking away with another person’s property” is an analogy used to describe a person taking away another’s property in passing, and its meaning is not completely clear.  If “walking away with another person’s property” is taken to mean that a defendant dishonestly takes away property carelessly left behind by another person or, conveniently seizing the opportunity presented by another person who inadvertently fails to keep his or her property in safe custody, takes that property away, then the offences committed by the applicant in the present case were not “walking away with another person’s property”.  If “walking away with another person’s property” is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately, steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of “walking away with another person’s property” is essentially as serious in nature as the offence of “pickpocketing”.  This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience.  As a matter of logic, we fail to see, for sentencing purposes, any real distinction between the case where the victim carried the wallet on his or her person or inside thebackpack he or she was carrying and the case where the victim placed his or her wallet on the supermarket trolley or on the table or chair close to him or her.  While it might have been easier to steal a wallet placed beside the victim instead of carried on the victim’s person, this can never constitute a reason for passing a lenient sentence.

25.We notice that different judges of the Court of First Instance have adopted different approaches in dealing with cases of the same type.  Some judges have taken the view that an offence in which the defendant stole property placed inside the clothing hanging on the back of a chair in a restaurant is different from the offence of “pickpocketing” and should therefore be sentenced differently, but some judges have taken the opposite view.  In our opinion, the nature of the offence  should not be affected by whether the victim’s property was, on the one hand, placed inside the clothing or bags next to him or her or, on the other hand, placed inside [the clothing] they were wearing or the bag they were carrying.  As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft offence and the offence of “pick-pocketing” in terms of gravity.

26.We have to emphasize that in the present case it is not that the applicant stole properties left behind by the victims or took properties away in passing when the careless victims were not keeping them in safe custody.  The applicant consciously preyed on the negligence of the victims and, acting with premeditation and deliberately, took the opportunity presented by the victims’ inattention and stole their belongings which were placed beside them, including their purses, which contained not only cash but also the victims’ personal items such as their identity document(s) and bank card(s).  The gravity of the offence committed by the applicant falls squarely within what the Court of Appeal emphasized in Ngo Van Huy.

27.We agree with the trial judge that, at least in relation to the offences under Charges 1 and 3, the gravity of those offences is the same as that of the offence of “pick-pocketing” and the starting point adopted for the former should also be the same as that for the latter.  Even if the nature of the offence under Charge 2 is slightly different from that of the offence of “pick-pocketing”, the difference is not significant in light of the background of the present case.  The applicant, acting with premeditation and deliberately, seized the moment when Ms Lee was inattentive and took away her mobile phone.  The applicant planned her acts and hunted for targets in public places. She observed that Ms Lee had not been paying attention to her mobile phone and so swiftly took it away.  The degree of gravity of the offence under Charge 2 is similar to that of the offence of “pick-pocketing”.

28.The applicant repeatedly stole properties belonging to others within a mere two hours.  Her reckless disregard of the law is indeed astonishing.  We are not persuaded by Mr Luk’s submission that the sentences for the four offences should run concurrently as all the offences were committed within a few hours.  If the courts acted in accordance with Mr Luk’s suggestion, this would in effect encourage the commission of multiple offences within a short period of time.

29.Within  two hours or so on an evening, the applicant thrice stole properties belonging to others, including cash of approximately $3,400 and Renminbi ¥300.  Upon arrest, the applicant had on her person cash of approximately HK$8,000 and Renminibi  ¥510.  This being the case, the inference that the cash on the person of the applicant came from the victims is both reasonable and irresistible.  We do not accept Mr Luk’s submission that the trial judge should not have regarded the cash seized on the person of the applicant as coming from the victims, which submission we consider illogical and by no means convincing. 

30.The trial judge regarded some of the cash seized on the person of the applicant as part of the stolen property subsequently retrieved, and on that basis exercised his discretion not to grant the applicant any reduction in sentence even though restitution had been made to the victims for part of their losses.  On the facts of the present case, we see nothing improper with the trial judge’s approach.  Mr Luk contended that the applicant had at an early stage already intended to make restitution to the victims for their loss in cash.  In our view, given the background of the present case, the applicant had no choice at all.  Whether she was willing or not, the court would certainly order that the cash seized upon her be given to the victims as compensation.

31.The applicant is obviously an incorrigible recidivist.  She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her.  The starting points and sentences imposed by the trial judge for individual charges with reference to Ngo Van Huy are appropriate.

32.It remains for us to consider whether the total term of 30 months is manifestly excessive.

33.The applicant has been sentenced to 30 months’ imprisonment on a guilty plea.  This translates to a starting point of almost 4 years.

34.In our view, for the three counts of “pickpocketing” and one count of “shop theft”, even when the applicant’s criminal records are taken into account, an overall starting point of 3 years sufficiently reflects the gravity of the case.

Conclusion

35.By reason of her guilty plea, the applicant is entitled to one-third discount in sentence.  Her sentence should therefore be 2 years’ imprisonment.

36.We have accordingly granted the applicant leave to appeal her sentence and, treating the application as the appeal proper, allowed the appeal.  We have not disturbed the sentences for the individual charges, but have ordered that only 3 months, 3 months and 2 months of the terms for Charges 2, 3 and 4 respectively are to run consecutively to the term of 16 months for Charge 1, and the rest of the sentences are to run concurrently. The total term of imprisonment of the applicant has been reduced from 30 months to 24 months.

Mr Andrew Li, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr Albert Luk, instructed by Ha and Ho and assigned by the Legal Aid Department, for the applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor