HKSAR v. CHAN MEI YEE, CARMAN (陳美儀) Applicant

cacC 447/2009

in the high court of the

hong kong special administrative region

court of appeal

cRIMINAL appeal no. 447 of 2009

(on appeal from dccc NO. 830 of 2009)

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J U D G M E N T

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Hon Stock VP (giving the Judgment of the Court):

1.  The applicant was convicted after trial of an offence of attempted theft and sentenced by Deputy District Judge Sham on 2 December 2009 to a term of 39 months’ imprisonment.  This is her application for leave to appeal against sentence.

2.  The charge was that she and another female, Kwan, on 23 May 2009, at the junction of Soy Street and Sai Yeung Choi Street South, Mong Kok, attempted to steal from a passerby.  Kwan pleaded guilty and nothing in this application turns upon the sentence imposed upon her.

3.  The offence took place in the afternoon of 23 May 2009.  The relevant facts are summarised in the Reasons for Sentence:

“It was a pickpocketing case.  On the day in question it was raining.  The two defendants were following their victim who carried a backpack on her back walking down a busy street in Mong Kok.  When they came close enough behind the victim, D2 [Kwan] moved sideways a little bit, putting up the umbrella.  D1 [the applicant] had a flyer in her left hand to cover the backpack of the victim….  By two attempts she was able to open up the zipper by 8 inches wide.  She inserted her hand into the backpack and at this juncture the police took action.  The sergeant grabbed hold of [the applicant’s] hand and had both defendants arrested.”

4.  At the date of the offence, the applicant was aged 28 years.  She had accumulated a lengthy record of criminal convictions, all but one for theft or attempted theft.  The first was in 1993 when the applicant was aged only 12 years.  Since 1993 and prior to the conviction with which we are concerned she had been convicted of theft on no fewer than 11 occasions.  The last occasion was in July 2008 when she was sentenced to 10 months’ imprisonment for theft.  It follows that the present offence was committed not long after her release from that term of imprisonment.

5.  The mitigation advanced was that she was single, had been unwell since the commission of the offence and was a drug abuser, the suggested relevance of which, one supposes, was that she stole to fund her drug abuse.

6.  In sentencing the applicant, the judge referred to the fact that the offence was committed by two persons and executed, in the judge’s opinion, in a professional manner and in a busy street with many people around.

7.  The judge took a starting point from his reading of a judgment in HKSAR v Tan Hong Sheng, CACC 238/2005, 10 February 2006, unreported.  One of the two passages cited by the judge from that judgment and upon which, as we shall see, the judge relied for the starting point, ran as follows:

“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 2 ½ years’ imprisonment.”

8.  It is worth noting at this point that paragraph in Tan Hong Sheng was a citation from R v Saldana Alca Jose and another CACC 655 of 1996, 19 August 1997, unreported.

9.  Having taken the starting point of 2½ years’ imprisonment, the judge correctly remarked that the sentences she had previously received had obviously not deterred her and that the court was accordingly entitled, for that reason, to nominate a higher starting point.  He said that:

“Because of her appalling record, I add 9 months on top of that, making the starting point one of 39 months.”  

10.  Since she had pleaded not guilty and since there was no mitigation, that is the sentence which the judge imposed: 39 months’ imprisonment.

11.  The sentencing guidelines for pickpocketing offences were those laid down by the Court in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The judgment was handed down 28 September 2004.  What the court said was this:

“9.        In our view, the following guidelines and principles for this type of offence should now be made clear ....: -

(1)       Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns.  Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one.  It is one which attracts, justifiably in our view, a heavy penalty.

(2)       The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender.  This is an immediate custodial sentence, not a suspended one.

(3)       Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4)       Aggravating features include : -

(a)      The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim) ….

(b)      Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c)      If the accused commits the offence in conjunction with another, the sentence should be higher.  Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for : see HKSAR v Rang Zhi Tai and Another, unreported, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 1999, Court of First Instance.  For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed : - see R v Saldana Alca Jose and Another, unreported, CACC 655/1996, 19 August 1997.  In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :

“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2 1/2 years’ imprisonment”.

(d)      Where the accused is a repeat offender or, worse still, a persistent one ….” (Emphasis added)

12.  There can be no question but that the applicant’s record of offending is such that the normal staring point of 12 to 15 months is susceptible to significant enhancement by reason of that record; and that there are two further aggravating features, namely, the fact that the offence was committed by more than one person and that it was committed in a busy street.  That said, it is, on its face, difficult to see how one justly arrives at a totality which is in the region of three times the 12 to 15 months starting point.  It seems clear that the judge has done so by his reliance on Tan Hong Sheng and its reference to Saldana Alca Jose.  So we need to look at Tan and at the context of its reference to Saldana.

13.  Saldana was a case decided in 1997.  The offenders had come from Peru to Hong Kong in order to commit pickpocketing offences.  What happened was that the two offenders together with a third person approached a 70-year-old tourist who was waiting for a taxi outside a hotel over whom they spilt tomato juice and then offered to clean it up.  Whilst doing so they stole the man’s briefcase.  It contained the victim’s passport, a bank passport, $1,200 in cash, an air ticket, and a piece of jade the value of which was about $1.5 million.  The judge had taken a starting point of four years’ imprisonment and reduced it by reason of the pleas of guilty.  The Court of Appeal said that the starting point was on the high side but neither wrong in principle nor manifestly excessive.  It was against that background that the Court said that “organized 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.”  In its judgment, the Court made no reference to the normal starting point for straightforward pickpocketing offences and did not engage upon the guideline analysis that we find in Ngo Van Huy, no doubt because the Court was not asked on that occasion to set guidelines.  That is not to say that we question the result of that case, which was a particularly nasty one of its kind but what we do not know from the decision is whether it was being suggested that whenever a pickpocketing offence was committed by more than one person, then that of itself took a starting point from one of 12 to 15 months’ imprisonment to double that, one of “at least 2½ years’ imprisonment”; or whether that sentiment was intended to be restricted to somewhat sophisticatedorganised crimes.

14.  Tan Hong Sheng was a 2006 case.  Tan was convicted after trial.  What he and two other pickpocekts did was to steal a mobile telephone from the handbag of a lady near the Kowloon Star Ferry Pier.  The judge took a starting point of 12 to 15 months’ imprisonment.  He identified four aggravating features: (1) that the offence was committed in a crowded area when the public was at particular risk; (2) that the offence was carried out by three persons; (3) that there was an international element since the offenders committed the offence the very day after they arrived in Hong Kong from the Mainland; and (4) that the offence was “organised, well-planned and quite professional.”

15.  The Court of Appeal in Tan noted that although Tan had a clear record, he was part of “anorganised and professional ring of thieves” and it was in that context that the court made reference to Saldana, which, it noted, had also been referred to in Ngo Van Huy.

16.  The Court referred to a number of other cases including one in which a court approved a starting point of 2½ years’ imprisonment for a group who had come from the Mainland, in the guise of tourists, with the specific purpose of operating as a team to steal from unsuspecting victims.

17.  In HKSAR v Duong Van Dung CACC 284/2004, 25 November 2004, unreported, Duong pleaded guilty to theft.  A lady was jostled in Argyle Street at about 7 p.m. and her mobile telephone stolen from her pocket and the applicant had been acting in concert with one other person.  He tried to sell the telephone to someone in a telephone shop.  The judge referred to the fact that “sentences for straightforward pickpocketing cases with aggravating features tend to start at around 12 to 15 months.”  The aggravating features were the fact that the theft took place in a well-known, crowded shopping area and there was some professionalism brought to the offence.  The applicant also had an appalling criminal record for this type of offence: some 17 previous offences.  The judge took a starting point of 30 months’ imprisonment, reduced for the plea of guilty and then enhanced by 50% because there had been an application for enhancement pursuant to the provisions of the Organised and Serious Crimes Ordinance, Cap. 455.  We note in passing that no such application was made in the case with which we are concerned.

18.  The Court of Appeal in Duong had well in mind – for it cited it – the decision in Ngo Van Huy including the passage within it from Saldana.  What the Court then said was this:

“The initial starting point of fifteen months’ imprisonment is appropriate.  The aggravating features were that the applicant was a persistent pickpocket, he was assisted in his endeavours by D2 and he operated after dark at a busy time in a crowded area.  These factors, in our view, entitled Judge Day to adopt a thirty-month starting point, although this was at the high end of the range for all but organised gangs of thieves.”

19.  It is important to pause there to note several points.  First, unlike the judge in the present case, the Court started, as one always must, from the point of 12 to 15 months’ imprisonment for a straightforward pickpocketing offence.  Secondly, there was nothing to distinguish the facts of that case from the present save for the fact that the offence was committed in the dark and even then the Court took the view that the 30 months starting point, although not manifestly excessive was “at the high end of the range”.  If that approach be correct – which we think it is – it is difficult to see how a 39 months sentence in the present case can be justified.  It will be seen that the comments in Duong referred to an “organized gang of thieves” as something different from a rather looser arrangement of two persons, not highly professional in their mode of operation acting together.

20.  In HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, two men targeted a female victim in Metro Harbour Plaza, Tai Kok Tsui and stole a wallet from the lady’s handbag, containing $80, an Octopus card and an identity card; all of which was recovered.  The applicant – one of the two men – was aged 38 years and had some 10 convictions for theft and attempted theft and others for drug offences.  Although he was originally from abroad, he had lived in Hong Kong for nine years.  What the judge at first instance did in that case was to reach, from the 12 to 15 month starting point, a sentence of three years before giving credit for the plea of guilty.  The Court of Appeal referred to Ngo Van Huy and other cases, noted that the offence in the instant case was planned, and had been committed in a crowded shopping mall and noted as well the applicant’s criminal record.  It noted further that some of the other cases to which it had been referred were cases where there had been an enhancement of sentence under the Organised and Serious Crimes Ordinance.  The Court concluded that the three-year point reached by the judge before mitigation was manifestly excessive and that a more suitable point would have been 30 months’ imprisonment, before deduction for the plea of guilty.

21.  Once again, it is difficult to see how one can justly distinguish the facts of Dang Van Tuan from the present case.

22.  Then there is HKSAR v Liao Mei & Ors CACC 432/2004, 17 November 2004, unreported.  That was a case of a professional gang of thieves who came to Hong Kong from Guangdong Province in order to commit these offences.  They crowded around the young woman one night at an empty station, boarded a train with her and, while standing close to her on the train, removed a mobile telephone from her jeans pocket.  The trial judge took a starting point of 30 months’ imprisonment, reduced that by one-third to reflect their pleas of guilty and enhanced that figure by 50% under the Organised and Serious Crimes Ordinance, on the basis of the prevalence of the offence.  The Court referred to Ngo Van Huy and to the reference in it to Saldana, stating that Saldana was approved by Ma CJHC in Ngo Van Huy in his reference to an “organised and professional ring of thieves”.  The 30 months taken by the judge before the deduction for the plea of guilty and before enhancement under the Organised and Serious Crimes Ordinance was considered to be appropriate.

23.  That case, in our judgment, was more serious than the present for obvious reasons: it was a case of a professional gang coming to Hong Kong to steal and did so in circumstances in which they had placed the victim in a particularly vulnerable position.  On one view, it may be said that the culprits compared favourably with this applicant by reason of their absence of previous convictions; but, as the Court in that case remarked, that is to embrace a degree of naivety and unreality; for, they said, “given the obvious sophistication of the operation, it would be naïve to believe this was the first time they had picked anyone’s pocket.”

24.  One knows that all cases are different, but the cases we have cited provide a sufficient theme upon which to come to a conclusion that the sentence imposed in this case was manifestly excessive.  The error, we suggest, derives from reliance upon one sentence in one case (“organised crimes of this nature”) which in our judgment cannot have been intended to apply to a case of the kind with which we are dealing.  Despite the reference in the 1997 case of Saldana to a sentence of 2½ years even without an international element, at the core of that case was an international element; but putting that element aside, the facts were steeped in an aura of sophisticated organized gang crime with a very substantial amount stolen from an aged man and it is in that context that the Court’s commentsmust be viewed. 

25.  What has happened in the present case is that the judge has alighted upon that one sentence in Saldana as seemingly suggesting that in any pickpocketing case involving more than one offender a starting point of 2½ years’ imprisonment is warranted.  There will be cases where the involvement of more than one offender will warrant a sentence at that level before mitigation but we do not think that this is one of them and the variety of cases which we have mentioned in this judgment so illustrates: and so far as concerns this particular case – a serious enough case but not of the Tan kind – we are satisfied that the sentence was not warranted.

26.  One commences with a starting point of 15 months’ imprisonment for the attempted theft itself.  One then addresses aggravating features.  Taking into account the fact that the offence took place in a busy street, that there was more than one offender and the many previous offences which lie at the applicant’s door, it seems to us that an overall sentence of 30 months’ imprisonment is appropriate.

27.  In coming to this conclusion, we are aware of the decision in HKSAR v Pham Bich Thuy and others, CACC 217/2009, 13 January 2010, unreported, in which the same 39-month starting point after aggravating features, adopted by the same District judge as in this case, was approved by the Court of Appeal.  But that was a case involving three men operating in a group at a location known to be frequented by Mainland tourists and the culprits had a list of previous convictions somewhat more serious than in the present case.

28.  In the circumstances, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside the sentence of 39 months’ imprisonment imposed by the court below and substituted therefor a sentence of 30 months’ imprisonment.