HKSAR v. HO CHING

HCMA201/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 201 OF 2009

(ON APPEAL FROM ESCC 1050 OF 2009)

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J U D G M E N T

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1.  On 27 February 2009, the appellant pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 Laws of Hong Kong.  She was sentenced to be imprisonment for 10 months.  This is her appeal against that sentence.

2.  The facts admitted in support of the charge revealed that on 25 February 2009, a team of police officers from the Wanchai District conducted an anti-pickpocket operation in the Wanchai area.  

3.  At about 7 a.m. on that day, one of the police officers an expatriate in plainclothes was provided with a quantity of marked money which he placed in the left hand breast pocket of his shirt.  As he walked down to Luard Road he was approached by a woman who offered him sexual services.  This he ignored.  He did however sit down outside the Thai Hut Fast Food Shop where he pretended to be drunk and asleep.  The same woman who had offered him sexual services was observed by other officers to approach the expatriate police officer. 

4.  Again she spoke to him and there being no response, she inserted her hand into the left breast pocket of his shirt and took the marked money.  She then attempted to flee.

5.  That woman was the appellant who was immediately apprehended by the other members of the police party.  The marked money was recovered.  She was arrested and when invited to answer questions exercised her right to silence.  The appellant was represented by counsel before the magistrate.  He told the magistrate that the appellant was 45 years of age, divorced and unemployed.  It was clear that whilst she had previous convictions they were not for theft and that her last conviction in April 2008 was for a drug related offence.  The magistrate was told the appellant’s family was in China and that she was alone here in Hong Kong. 

6.  When sentencing the appellant the magistrate took a starting point for sentence of 15 months’ imprisonment which she reduced to 10 months to reflect the appellant’s plea of guilty.  The starting point taken by the magistrate was as she indicated in line with the recommendations of the Court of Appeal in HKSAR v. Ngo Van Huy [2005] 2 HKLRD 1.  In that case the Court of Appeal observed that a range of sentences between 12 and 15 months’ imprisonment after trial for a first offender without aggravating factors such as the use of a knife or cutter would normally be appropriate in cases of pickpocketing.

7.  The magistrate considered that the appellant’s conduct on the day in question put her culpability at the upper end of that range because the appellant had sought to take advantage of a victim she thought to be drunk.

8.  The appellant today is unrepresented.  She was previously written to this court asking for a more lenient sentence because she pleaded guilty.  She points out that whilst she has previous convictions they are not for offences of theft.  Likewise she points out that at the time of the commission of the offence she was herself intoxicated. 

9.  I am satisfied that in all of the circumstances the starting point for sentence which was adopted by the magistrate is too high.  The appellant’s degree of criminality is to my mind at the lower end of the range suggested by the Court of Appeal guidelines.  This was an opportunistic act on the part of the appellant in circumstances which were to say the least unusual.  At starting point for sentence of 12 months’ imprisonment was appropriate from which the appellant was entitled to a one-third discount for her plea of guilty.

10.  In the circumstances the appeal will be allowed to that extent and a sentence of 8 months’ imprisonment will be substituted for that of 10 months imposed by the magistrate.