HKSAR v. CHAN KOON WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 196 OF 1998

(ON APPEAL FROM NKC 4818 OF 1997)

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J U D G M E N T

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1. On 12th February of this year, the Appellant pleaded guilty in North Kowloon Magistracy to one count of attempted theft, the crime being what is commonly called pickpocketing. He was sentenced to fifteen months imprisonment and appeals against that sentence on the grounds that it is wrong in principle and/or manifestly excessive.

2. The background facts are simple enough. On the afternoon of 17th August 1997 police officers observed the Appellant approach a woman who was shopping, unzip her handbag and reach into the bag. The officers then intervened and the Appellant was arrested. The incident took place in Argyle Street, Mongkok.

3. When the Appellant first appeared in court, he pleaded not guilty. He was granted bail pending trial but did not appear for trial. Accordingly, he was arrested and when brought back before the court changed his plea to one of guilty.

4. In sentencing the Appellant, the Magistrate found that, if the Appellant had been convicted after trial, a term of eighteen months imprisonment would have been appropriate. As for matters of mitigation, the Appellant was unable to claim a previously unblemished record. He had twenty four previous convictions, a number drug related, nine being for theft. For his plea of guilty, however, the Magistrate found that a discount of three months was appropriate. This was a discount of just over fifteen percent. In this regard the Magistrate said:

"He had been caught red-handed and the likelihood of conviction after trial was great. On his plea of guilty, a discount of three months was appropriate."

5. The Appellant's first ground of appeal is that the Magistrate was wrong in principle to consider that after trial an appropriate sentence would have been eighteen months instead of a sentence falling into the range of twelve to fifteen months.

6. In 1990, in the joint matters of R. v. Vy Van Kien and Pham Van Hoa (M.A. 1162 of 1990), Penlington J.A., sitting as an additional High Court Judge, said the following:

"Each case must always be treated on its own facts and the circumstances of each offence and offender will always vary. However from a consideration of the relevant authorities it has been accepted that pickpocketing has become prevalent in Hong Kong and, if a sentence of imprisonment is called for, a starting point of 12-15 months after trial is correct. This should be increased if there are aggravating factors such as the use of a weapon, like a razor-blade, or if the offence is committed in a place where the public, through no fault of its own, is at risk. This would include all forms of public transport and such crowded places as the race courses. Another aggravating factor which would certainly call for a substantial increase in sentence would be evidence that the offender was acting in concert with others in a well organised gang operation. An offender's record in itself is not, however an aggravating factor justifying an increase in sentence beyond what the facts of the particular case requires. A very bad record may well suggest the desirability of a preventive sentence but if that is required it is for the legislature to introduce a provision to allow for it ..."

7. The sentencing guideline laid down in that authority has been followed on several occasions by this Court; see, for example, R. v. Duazo (M.A. 1124 of 1996) per Sears J.:

"This is a standard pickpocketing offence. The authorities are clear, the range of sentence is one of 12-15 months."

8. It has been argued by counsel for the Respondent that the Magistrate was entitled to take a higher starting point than fifteen months, not because of the Appellant's previous convictions or the fact that he failed to honour his conditions of bail, but because the offence was committed in a Mongkok street which notoriously must have been extremely congested in the late afternoon. With respect, however, the Magistrate did not state that to be an aggravating feature and there was no evidence before the Court that at the material time the street was so congested. Pickpockets invariably operate in crowded areas. The dicta of Penlington J.A. that the starting point should be increased if the offence is committed in a place where the public, through no fault of its own, is at risk; for example, in public transport or at race courses, was never intended to also include the normally busy streets of Hong Kong. If it did, it would amount in effect to an increase in the tariff as it would apply to the great majority of cases.

9. In my judgement, there being no aggravating features in this case, if the Appellant had been convicted after trial the appropriate sentence should have been fifteen months.

10. It is the Appellant's second ground of appeal that the Magistrate did not grant the standard discount of one third and that this too was wrong in principle.

11. In R. v. Duazo supra, Sears J. said the following in respect of discounts awarded on guilty pleas:

"Pleas of guilty should be encouraged - it saves public expense, pressure on court times and is some indication of remorse. Further, lawyers have to advise defendants as to the benefit to be obtained by pleading guilty, and if no proper discount is given, then their task is made more difficult."

12. Recently, in HKSAR v. Wai Kin-shing (C.A. 505 of 1997) the Court of Appeal said the following:

"The only matter which concerns us is whether the applicant was entitled to be given the full one third discount. This court has said on a number of occasions that if a judge is not, in circumstances where it appears that an applicant is entitled to a one-third discount, prepared to give that discount, then he must give his reasons for not so doing. There has been no reason given in the present case and we can see no reason why the applicant should be deprived of the benefit of a full discount."

13. The only reason given by the Magistrate for not granting the full one third discount was that the Appellant had been caught red-handed and a conviction after trial was probable. With respect, while that may often be good grounds for refusing to grant the standard discount, in the circumstances of this particular case I do not believe that this factor, standing alone, was sufficient to deny the Appellant. The only evidence was visual identification made on a busy street. There was no other supporting evidence. It is not unheard of for acquittals to be obtained in such circumstances.

14. In my judgment, a one third discount should have been granted. The appeal is allowed and the sentence reduced to ten months.