HKSAR v. LIAO MEI AND OTHERS

CACC 432/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 432 OF 2004

(ON APPEAL FROM DCCC 642 of 2004)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.  On 24 September 2004, the Applicants, Liao Mei, Liang Turong and Ke Huasheng, pleaded guilty in the District Court before H H Judge Day, to a joint charge of theft, contrary to section 9 of the Theft Ordinance Cap 210.  Each of them was sentenced on the same day to 2½ years’ (30 months) imprisonment.  They now seek leave to appeal against their sentences.

2.  It is accepted that there are no reasons to regard any one of the Applicants as more or less culpable than the others, and that their sentences should be the same.

Facts

3.  The three Applicants operated as a pick-pocketing gang.  On 30 April this year, at around 7.14 p.m., the police observed them crowding around a young woman at Sham Shui Po MTR station.  When the train arrived they boarded the train with her.  On the train they stood close to her and the 1^st Applicant removed a mobile phone from her rear jeans pocket and immediately passed it to the 2^nd Applicant.  They were stopped and arrested.  The police recovered the stolen phone from the 2^nd Applicant’s front jeans pocket.

4.  All had come to Hong Kong on the day of the offence.  The 1^st and 2^nd Applicants had arrived as members of the same tour group.  The 1st Applicant is a woman of 40, the 2^nd Applicant is a man of 37 and the 3^rd Applicant is a man of 50, all come from Guangdong Province in the Mainland.  None of the Applicants has a criminal record in Hong Kong, whether or not they have one in the Mainland is unknown.

Sentencing

5.  In sentencing the Applicants, the Judge took a starting point of 2½ years’ (30 months) imprisonment for each of them.  He reduced that by one-third to 20 months to reflect their guilty pleas, and then enhanced that figure by 50% in accordance with section 27 of the Organised and Serious Crimes Ordinance (OSCO) on the basis of the prevalence of the offence, taking the sentence back to one of 2½ years (30) months.

Grounds of Appeal

6.  The grounds of appeal advanced on behalf of the Applicants are that that the starting point was manifestly excessive, and the enhancement of sentence was too great.

Discussion

7.  In advancing his argument in support of these grounds, Mr. Kevin Chan, counsel for the Applicants, relies on the decision of this Court in HKSAR v. Ngo Van Huy CACC 107/2004 (unreported) (a judgment that was handed down four days after the Applicants were sentenced) in submitting that the starting point should have been 15 months, rather than the 2½ years taken by the Judge.  In Ngo Van Huy this Court laid down guidelines to assist Judges and Magistrates in sentencing pickpockets.  In the judgment, Ma CJHC made it clear that the recommended guideline starting point sentence of between 12-15 months immediate imprisonment is for a first time offender and only applies where there are no aggravating factors.

8.  Mr. Chan accepts that the judgment in Ngo Van Huy recognises that additional periods of imprisonment may be added to the 12-15 months’ starting point for aggravating factors.  He also accepts that it was appropriate for the Judge to enhance the Applicants’ sentence under OSCO, but (again relying on Ngo Van Huy) argues that the enhancement should have been one-third rather than 50%.

9.  The appellant in Ngo Van Huy was a pickpocket who worked alone.  He was sentenced to 2½ years’ imprisonment, including an enhancement of 25% under OSCO, for a single count of theft.  In allowing his appeal and varying his sentence, this Court took a starting point of 15 months and then increased it to a total of 27 months by adding 9 months for the appellant’s lengthy criminal record (he had 35 previous convictions, of which 17 were for theft) and a further 3 months to reflect the fact that the offence was committed in a crowded area.  The Court then gave a one-third reduction to reflect the appellant’s guilty plea, reducing the starting point to 18 months, and then enhanced that figure by one-third under OSCO to bring the sentence up to 2 years (24 months), which was substituted for the original 30-month sentence.

10.  Ma CJHC made it clear that, among other matters, aggravating factors justifying a higher sentence included cases where the pickpocket commits his offence with another.  And that where he is part of an “organised and professional ring of thieves a substantial increase in sentence may be called for”.  On this, he quoted with approval the following comments of Patrick Chan J (as he then was) in another unreported decision of this Court, R v. Saldana Alca Jose and Another CACC 655/1996:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

11.  With regard to enhancement, Ma CJHC said that:  “in our view, enhancing the sentence by ⅓ would be appropriate”.

12.  Mr. Chan argued that the relatively low value of the stolen property was a consideration in determining the length of the Applicants’ sentences.  We do not agree.  Whilst the value of the stolen goods may have some bearing on the length of sentence in some cases of theft, in pickpocketing cases the value of the stolen goods is not as important as it may be in other types of theft where the offender some idea of the value of the property he is targeting.  It is the case in pickpocketing cases that the thief, generally speaking, has no idea of the value (or even identity) of the property he is stealing until he has stolen it.

13.  In this case in respect of all three Applicants there are aggravating factors.  They were a professional gang of thieves who came to Hong Kong from the Mainland, in the guise of tourists, with the specific purpose of operating as a team to prey on unsuspecting citizens, and to steal from them.  They worked well together in their chosen trade for their observed modus operandi clearly was very well choreographed.  The Judge was aware of this and said in his reasons for sentence:

“This was a well organised group working in a crowded situation and working well together.”

14.  They committed their offence in a crowded place.  They identified their target on an MTR station and then stole from her in the MTR train.  The judgment in Ngo Van Huy identified the fact that the theft takes place in a crowded place as an aggravating feature.  Here we comment that in pickpocketing cases this will usually be the case as it is the press of the crowd that makes the pickpocket’s job easier. 

15.  The most that can be said in their favour is that none of the Applicants has a known criminal record.  However, given the obvious sophistication of their operation, it would be naive to believe that this was the first time they had picked anyone’s pocket.

16.  Given these features, we are of the view that the starting point of 30 months adopted by the Judge was entirely correct.  He was as equally correct to give each of the Applicants a one-third discount for his or her guilty pleas.

17.  Turning to the question of enhancement of sentence under OSCO, the one-third enhancement taken in Ngo Van Huy is indicative that the 50% enhancement taken by the Judge in the present case was too high.  In realistic terms, as 20 months is not readily divisible by three, this means that a slightly under one-third enhancement of 6 months should have been taken.  To that extent, as a matter of principle, we must give all three Applicants leave to appeal.

Decision

18.  For the reasons we have given, we grant all three Applicants leave to appeal.  Treating this hearing as the hearing of their appeals, we allow the appeals in each case by reducing their sentence from 30 months to ones of 26 months’ imprisonment.