R. v. MALLQIU ROJAS GIMA SUSSY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 602 OF 1995

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J U D G M E N T

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1. The appellant, a Peruvian female was convicted by her own plea to one charge of theft. The facts are that she and three other persons went to a shop. Two of them enticed the shopkeeper to go outside the shop to see the displayed items, whilst the defendant and the remaining one went behind the counter. The defendant was caught and the others fled. A sum in cash was found missing. Later under the direction of the appellant, the money was recovered in tact from a rubbish bin. She was sentenced to 18 months' imprisonment.

2. The appellant came to Hong Kong as a tourist and she had three children back home. The learned magistrate in sentencing the appellant considered that this was a planned raid involving at least 4 persons working in concert. He equated this to pickpocketing for the purpose of sentencing. He considered immediate custodial sentence inevitable and following the guidelines in R. v. Nguyen Piran Lin CA 454/89 and Tran Quang Tuan MA 360/89 and giving little credit for her plea of guilty since she was caught red- handed, he imposed the sentence of 18 months' imprisonment.

3. The learned magistrate did not state what was the starting point.

4. Miss Cheng for the appellant submitted that the present case of theft was not the same as pickpocketing especially when it was not in a public place. She submitted that the learned magistrate in imposing the sentence of 18 months must have decided on a starting point higher than 18 months and this was too high. She referred to a number of authorities, the cumulative effect of which, it was submitted, showed that 18 months after plea was too high.

5. In Vy Van Kien [1991] 1 HKLR 422, the Court of Appeal set down 12-15 months' imprisonment as the normal starting point for pickpocketing offence after trial and this should be increased where there are aggravating factors such the use of a weapon, theft in a place where the public is at risk or where the offender acts in concert with others.

6. In Wu Chi-hung MA 442/94, the appellant was caught red-handed after he stole a wallet from a man in a betting centre. He pleaded guilty and was sentenced to 18 months' imprisonment. This was reduced to 15 months on appeal. Referring to Vy Van Kien, Keith J. regarded the place of theft being a betting centre, an aggravating factor and 18 months starting point was justified but a proper discount should have been given to reflect the guilty plea.

7. In Hussain Maqbul MA 247/94, the appellant together with other persons stole a wallet from a man on a tram. He was convicted after a trial and sentenced to 14 months imprisonment. Keith J. referring to Vy Van Kien regarded the appellant being part of a gang and committing the theft on board public transport as aggravating features so that 18 months starting point was appropriate. Fourteen months was considered appropriate even though he did not consider there were sufficient mitigating circumstances to merit a discount of 4 months.

8. In Tran Quang Tiep MA 556/93, the appellant stole money from the purse of a 62 years old lady. He was caught red-handed. He pleaded and was sentenced to 18 months' imprisonment. On appeal, it was reduced to 12 months' imprisonment. Leonard J. recognised the current normal sentence for pickpocketing offences was 15 months' imprisonment and might be higher if there were aggravating features. He considered there was no aggravating factor and the starting point should be 15 months from which discount should be made for the guilty plea.

9. In Maria P. Flor MA 1623/94, the appellant was caught when she was seen trying to open the handbag of a lady at the Star Ferry Terminal. She pleaded guilty and was sentenced for theft to 12 months' imprisonment consecutive to a 9 months' sentence for breach of a deportation order. She was 59 years old. On appeal, the sentence of 12 months was considered to be appropriate but as an act of mercy, Keith J. ordered part of the sentence to run concurrently with the 9 months' sentence. The overall sentence was reduced to 15 months.

10. In Nguyen Phan Lin CA 454/89, the appellant was caught after he was seen bumping against a lady and opening her handbag and removing from it a purse in a crowded street in Tsim Sha Tsui. He was sentenced to 2 years' imprisonment after given a reduction of 6 months for his guilty plea. On appeal, the sentence was upheld since the appellant was a professional pickpocket and it was a well planned theft.

11. In Ying Yu Fat MA 1684/88, the appellant was sentenced to two years' imprisonment after he was convicted of theft after a trial. He was caught after he was seen together with other persons on board a train removing a wallet from a passenger and passing it to an accomplice. Bewley J. considered 15 months as the starting point and reduced the sentence accordingly.

12. Mr. Cheung for the Crown submitted that these cases were appropriate for application in a case of theft in the circumstances of this case. The appellant acted in concert and the sentence should not be reduced even though there was no loss in money.

13. The sentences in respect of pickpocketing offences are equally applicable in a case of theft in circumstances as in the present case. The appellant acted in concert with other culprits some of whom acted as a decoy to enable the appellant to steal the money from under the counter. Vy Van Kien provides the guideline for sentencing such offences. As a starting point, taking into account the aggravating factor of acting in concert with others and in a shop which was open to the public, 18 months' imprisonment would have been appropriate. The appellant was caught red- handed. Her plea of guilty in the face of such evidence even though merit little, nevertheless entitled her to a discount. 3 months' discount would be appropriate. The appeal is therefore allowed and a sentence of 15 months substituted.