HKSAR v. CHOI PING CHIU

CACC 312/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 312 OF 2010

(ON APPEAL FROM DCCC 719 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.  The applicant (Choi Ping-chiu) appeared before Deputy District Judge A Yim on 25 August 2010 on an indictment consisting of 10 counts. He pleaded guilty to five counts of theft (the 1^st, 2^nd, 3^rd, 4^th and 7^th charges) and one count of assaulting a police officer in the execution of his duty (the 9^th charge).

2.  Apart from the 3^rd charge which was a joint charge against the applicant and his girlfriend (Yeung), the other four counts were directed at the applicant alone. Yeung also faced other counts, including the 6^th charge of handling stolen goods, the 8^th charge of possession of identity cards relating to others and the 10^th charge of assaulting a police officer in the execution of his duty . Yeung pleaded guilty to the 10^th charge and the other charges were not proceeded with.

3.  The applicant was sentenced to 14 months’ imprisonment on each of the 1^st, 2^nd, 3^rd and 7^th charges; 12 months on the 4^th charge, and 2 months on the 9^th charge. The judge ordered parts of the sentences to run concurrently making a total sentence of 32 months’ imprisonment with restitution orders.

4.  At the time of sentence, the applicant was serving sentences totaling 10 months and 3 weeks in cases ESCC1050/2010, ESCC1757/2010 and ESCC3415/2010 (the magistrate cases) imposed on him on 30 April 2010 and 13 August 2010. The judge ordered the 32-month sentence to run consecutively to the 10-month and 3-week sentence, making a total sentence of 42 months and 3 weeks’ imprisonment.

5.  The brief facts of ESCC1050/2010 showed that the applicant, together with another, boarded a taxi on 11 February 2010 and during the journey stole a plastic cash box containing coins of about $300. The applicant’s accomplice alighted from the taxi first with the money. The applicant was arrested when the taxi driver discovered the loss. The applicant pleaded guilty to a charge of theft on 30 April 2010 and was sentenced to six months’ imprisonment.

6.  In ESCC1757/2010, the applicant pleaded guilty to one count of blackmail. The victim’s husband had earlier lost his mobile phone and on 11 November 2009, the applicant and his accomplice demanded $2,500 from the victim, saying that they would sell the mobile phone to the Mainland if their demand was not met. In ESCC3415/2010, the applicant admitted stealing five letters and four cheques from a residential building in Percival Street on 13 October 2009. The applicant claimed that the five letters were sold for $50 each and the four cheques would be kept for future use.

7.  The magistrate, who dealt with both cases, sentenced the applicant to 3 months’ imprisonment for the blackmail charge and 2 months’ imprisonment for the theft charge, with one week to run concurrently, making a total sentence of 4 months and 3 weeks’ imprisonment. The magistrate ordered the 4-month and 3-week sentence to run consecutively to the 6-month sentence imposed in ESCC1050/2010. The total sentence in the magistrate cases was 10 months and 3 weeks’ imprisonment.

8.  Represented by Mr Robert Andrews, the applicant sought leave to appeal against total sentence of 42 months and 3 weeks.

9.  At the end of the hearing, we granted leave and allowed the appeal. We ordered the 32-month sentence imposed by the judge to run concurrently with the sentences imposed in the magistrate cases, making a total sentence of 32 months instead of 42 months and 3 week. For the avoidance of doubt, we specified that the concurrent sentence of 32 months to commence from the date when the applicant was remanded in custody, namely 20 April 2010. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

10.  The 1^st, 2^nd, and 7^th charges were all thefts from taxi drivers while travelling as a passenger and were committed on 2 February 2010, 26 February 2010 and 20 April 2010 respectively. The applicant was assisted by Yeung and the amounts involved ranged from $500 to $850. The 3^rd and 4^th charges were thefts of cash and personal properties from friends on 26 March 2010 at a gathering in a hotel room.

11.  The 9^th charge of assaulting a police officer in the execution of his duty was committed on 21 April 2010 after the applicant and Yeung were arrested in connection with the 7^th charge and taken back to the police station for enquiry. When Yeung was told that she would not be released on bail, she refused to co-operate and became emotional. The applicant joined in by shouting and bumping twice against police officers.

12.  In respect of the magistrate cases, the applicant was put on police bail on 14 October 2009, 12 November 2009 and 11 February 2010. The present offences were committed when the applicant was on bail.

The Applicant’s Background

13.  The applicant is 34 years old. Excluding the convictions in the magistrate cases, the applicant had 19 previous convictions, mostly for offences of dishonesty. There were also convictions for drugs, assault, criminal intimidation, criminal damage, blackmail and possession for sale of Duty-Not-Paid cigarettes. The applicant had been sentenced to the training center, the DATC and prison. In mitigation, it was said that Yeung expected their child to be born in September 2010.

The Judge’s Approach

14.  The judge considered the applicant a persistent offender. She took the view that the previous sentences imposed on him were no deterrent and therefore it was necessary to adopt an enhanced starting point. The judge pointed out that the offences were committed when the applicant was on police bail and that the starting point should therefore be further enhanced.

15.  The judge appeared to have adopted a basic starting point similar to that of a pickpocketing case, namely 12 months’ imprisonment and then enhanced it by 9 months to 21 months for the two aggravating factors that she had identified. As the applicant had pleaded guilty to the charges, the judge reduced the starting point by one-third to 14 months on charges 1, 2, 3 and 7. The judge also sentenced the applicant to 12 months’ imprisonment on charge 4 and 2 months’ imprisonment on charge 9.

16.  On totality principle, the judge ordered parts of the sentences to run concurrently, making a total sentence of 32 months on the six charges. The judge further ordered the 32-month sentence to run consecutively to the sentences imposed in the magistrate cases.

17.  With consent from the applicant, the judge made restitution orders in favour of the taxi drivers with money seized from the applicant at the time of his arrest. The judge also made restitution orders to the victims in charges 3 and 4.

Grounds of Appeal

18.  Mr Andrews suggested that the basic starting point of 12 months was too high. He argued that, unlike pickpocketing, the offences committed by the applicant did not require any trade skill. Mr Andrews took the view that the theft offences were not premeditated and were “opportunistic”.

19.  Mr Andrews accepted that the starting point should be increased because the applicant was a repeat offender, but argued that the enhancement of 6 months and then another 3 months for committing the offences whilst on police bail excessive, particularly when the sentences were ordered to run entirely consecutively to those in the magistrate cases.

20.  Mr Andrews suggested that the judge had not taken into consideration the restitution orders in favour of the taxi drivers, nor the sentences imposed in the magistrate cases when applying the totality principle.

21.  Mr Andrews argued that the 2-month sentence for the 9^th charge was excessive as it was only a minor assault on police officers when the applicant was in a police station.

22.  In any event, Mr Andrews submitted that the total sentence was manifestly excessive and should be reduced.

Discussion

23.  The offences committed by the applicant, individually speaking, may not be too serious. However, the applicant committed a series of similar offences within a few months when he was on police bail in respect of other similar offences. What the applicant did was an affront to law and to the administration of justice.

24.  We did not agree with Mr Andrew’s suggestion that the offences were not premeditated and were opportunistic only. It was not an isolated occasion when a taxi passenger took the coins box/wallet of the driver. The applicant and his accomplice(s) were clearly targeting taxi drivers. With similar modus operandi, they repeatedly stole from taxies by pretending to be passengers.

25.  What the applicant did may not require any tool although he did use a newspaper to divert the drivers’ attention in the course of committing the offences. The applicant was skilful and, with the assistance of another, was able to successfully steal from taxi drivers and others on many occasions. If it was appropriate to use the word “opportunistic” to describe what the applicant did, it was because the applicant used every opportunity to steal from others for financial gain.

26.  We were firmly of the view that the judge was right to treat the matter seriously and to impose a deterrent sentence with a view to stop the applicant from constantly breaking the law. The public and taxi drivers who are particularly vulnerable must be protected from unscrupulous criminals such as the applicant.

27.  The applicant was clearly a persistent and repeated offender and the judge was entirely correct to treat it as an aggravating factor (see HKSAR v Ngo Van Huy [2005] 2 HKLRD 1at pp 8 to 9, and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at pp 833-4).

28.  Police officers, in the due execution of their duties, are symbol of law and order, and must be respected and protected from abuse. If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised. The fact that the applicant assaulted a police officer in a police station in the presence of five police officers indicated that the applicant had no respect for law and order. The 2-month sentence, on a plea of guilty, was not a day too long.

29.  The fact that the applicant committed fresh offences whilst on bail in respect of similar offences must also be an aggravating factor. Mr Andrews did not seek to argue otherwise.

30.  We were not persuaded that any of the starting points adopted by the judge could be said to be manifestly excessive.

31.  On the other hand, the offences, including the magistrate cases, were committed by the applicant as a series of offences over a few months. Even though there were a total of four cases, the court should regard them as having been heard together and adopt an appropriate overall starting point as observed by Barker JA in R v Tong Hoi-fung [1988] 1 HKLR 610 at 611G-H:

“Mr Forrest urges us to approach this matter as if the two cases had been heard together and look on that basis at the totality of the sentence.”

32.  We also accepted Mr Andrews’s point, as propounded by the Court of Appeal in HKSAR v Kwok Shiu To William [2006] 2 HKC 421, that:

“When dealing with cases involving a series of offences that the question of totality is paramount and it perhaps matters less by which method that is achieved than the total sentence be appropriate to the overall criminality.”

33.  With respect, when the judge considered the question of totality, she did not seem to have in mind the sentences imposed in the magistrate cases.

34.  A total sentence of 42-month and 3-week (the 32-month sentence together with the 10-month and 3-week sentences imposed in the magistrate cases) represents an overall notional starting point of over 64 months’ imprisonment.

35.  We were persuaded that the 64-month starting point, when considering the applicant’s overall criminality in what could be described as a series of petty but irritating crime albeit by a repeated and persistent offender, was manifestly excessive and should be reduced. We were satisfied that an overall starting point for the offences, including those in the magistrate cases, and with the restitution as a mitigation factor, should be 4 years’ imprisonment.

36.  As the applicant had pleaded guilty to all the charges, including those in the magistrate cases, the overall sentence should be 32 months’ imprisonment.

37.  We did not change the individual sentences that had been imposed in respect each of the charges, including those in the magistrate cases, but ordered the 32-month sentence imposed in DCCC 719/2010 to run concurrently with the sentences imposed in ESCC1050/2010, ESCC1757/2010 and ESCC3415/2010.

38.  For the avoidance of doubt, we expressly ordered that the 32-month were to commence from the date when the applicant was remanded in custody in connection with the present case.

Conclusion

39.  We granted leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allowed his appeal to the extent indicated.