HKSAR v. Ganbold Munkh Erdene and Another

CACC 315/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2014

(ON APPEAL FROM DCCC NO. 435 OF 2014)

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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.The appellants appeal by leave of the Single Judge against sentences of 2 years’ imprisonment after trial in the case of the 1^st appellant, and 16 months’ imprisonment after plea in respect of the 2^nd appellant, passed by HH Judge Casewell in the District Court. Both appellants had been charged with a joint offence of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

The facts

2.The allegation was one of pickpocketing.  Both appellants were observed by two plainclothes police officers to be following closely behind a young couple as they walked along Chatham Road in the direction of Cameron Road, Tsim Sha Tsui at about 4.09 am on 22 April 2014.  The couple were in an obviously intoxicated state, having been out drinking for the night in the area.  It was the early hours of the Tuesday morning following the four-day Easter long weekend.

3.The 1^st appellant was seen removing a wallet from the female’s handbag which was being carried by her boyfriend.  The 1^st appellant then passed the wallet to the 2^nd appellant.  The police officers immediately approached the appellants whereupon the 2^nd appellant threw the wallet onto the ground.  The two appellants were arrested and the wallet recovered.  It contained $380 in cash, several bankcards and an Identity Card.

4.Both appellants are Mongolian nationals, aged 32 and 31 respectively, and of clear record in Hong Kong.  The 2^nd appellant had arrived in Hong Kong as a tourist on 19 April 2014, the previous Saturday, while the 1^st appellant had arrived, also as a tourist, on 15 April 2014, a week before the commission of the offence.

The judge’s reasons for sentence

5.Having observed that the offence was committed in the early hours of the morning in the Tsim Sha Tsui area by two defendants acting in concert, the judge stated that:

“The starting point for a simple pickpocketing case can range between 12 to 15 months’ imprisonment for a person of clear record and where more than one person acts in concert with a degree of professionalism, starting points of up to 30 months’ imprisonment have been adopted by the courts.

Now as far as this case is concerned, the aggravating factors would be that the defendants acted together, that the decision to steal must have involved some planning and by acting in concert they removed the wallet from the person who actually takes the item thereby attempting to defeat any investigation. So, a degree of planning has been shown in this offence.

As far as the location is concerned, it is an area where people returning from drinking in nightclubs can expect to be found. To a certain extent they were preying on those people, although at that time of night it cannot be described as busy.

Taking all these factors into account, I have determined that an overall starting point for this offence of 24 months is appropriate.”

The grounds of appeal against sentence

6.Mr Norton Pang, who acts on behalf of both appellants, argues in essence that the judge failed to identify the starting point and the factors he took into account in arriving at the starting point in respect of each appellant, thereby making it difficult for anyone to know the extent to which the aggravating features he identified had increased that starting point.  Furthermore, he submits that whatever the circumstances of this particular offence and its aggravating features, it did not merit a sentence after trial of 24 months’ imprisonment.

The prosecution’s response

7.It is acknowledged by Mr Franco Kuan, who appears for the respondent, that it would have been better had the judge specified his initial starting point before taking into account any aggravating features.  Nevertheless, the ultimate issue is whether the sentence arrived at is manifestly excessive or not.  In that regard, he accepts that the resulting sentences were on the high side but nevertheless submits that they were within the acceptable range of sentence open to a judge in the exercise of his sentencing discretion, particularly one who had heard the evidence.

Consideration

8.We agree that the judge should have identified the starting point he considered appropriate before a consideration of those factors which aggravated the sentence.  This is particularly so in offences where there are gradations of sentence depending on different circumstances and aggravating features, in order that the workings of the sentence are made clear to a defendant and to any appellate court.  One of the particular concerns encountered by appellate courts in this area of sentencing, for example, which courts must be careful to avoid, is the problem of double-counting: see, for example, HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 at para 10; HKSAR v Chiu Suet Yee, Angel (Unrep) CACC 105 of 2010 at para 12.  Stating the initial starting point not only helps the sentencer distinguish between those factors which go to the starting point and those which go to aggravate that starting point, but will also allay the appellate court’s concerns on the matter.  Furthermore, a failure to identify the starting point by the sentencing court will make it more likely that an appellate court will then have to conduct the exercise of assessing the appropriate sentence anew.

9.Having said that, we agree with Mr Kuan that the circumstances of this particular offence would have justified an initial starting point of 15 months’ imprisonment.  There was a certain level of skill involved in the execution of this offence whereby one defendant extracted the wallet and immediately passed it to his accomplice so as to avoid detection, the victims were plainly intoxicated and thereby vulnerable to pickpocketing, and the potential loss of money, credit cards and an Identity Card would have been extremely troublesome for the victim concerned.

10.In relation to those features which aggravated sentence, this was an offence which was obviously planned and premeditated by two men acting in concert.  It was not an offence committed by a single defendant or one which could be said to have arisen opportunistically or on the spur of the moment.  Pickpocketing carried out by two or more defendants acting in tandem is a much more serious example of the offence.  As for the element of planning, it is clear that these appellants were in the area at this time of night looking for a suitable target.  The fact that they had arrived in Hong Kong a matter of days before the offence was committed calls into question their purpose in coming to this city.  That they would choose this particular area of Tsim Sha Tsui at this particular time would suggest a certain knowledge and planning on their part as to where vulnerable people such as the couple in this case might be found and preyed on for their purpose.  To that extent, we agree with Mr Kuan that their recent arrival in Hong Kong is a factor which adds colour to their degree of premeditation and planning.  Nevertheless, the evidence falls short of establishing that the two appellants came to Hong Kong specifically in order to steal, which would have been “a most serious aggravating factor”: see HKSAR v Tan Hong Sheng [2005] (Unrep) CACC 238 of 2005; HKSAR v Sandagdorj Altankhuyag and another [2014] 1 HKC 206.

11.Although this is a tourist area which might be expected to see people at any time of the day, the judge accepted, having heard the evidence, that “there was little traffic or passing pedestrians at that time of the morning”.  In those circumstances, he did not consider this to be a matter in aggravation of the starting point.

12.In our judgment, the aggravating features present in this case would have warranted an increase in the starting point of 6 months’ imprisonment, taking the appropriate sentence after trial to 21 months’ imprisonment.  That being our view, these appeals must be allowed.  The 1^st appellant’s sentence will be reduced from 2 years to 21 months’ imprisonment and the 2^nd appellant’s sentence will be reduced from 16 months to 14 months’ imprisonment.

Mr Norton L T Pang, instructed by Bernard Wong & Co, assigned by Director of Legal Aid, for the 1^st & 2^nd Appellants

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