HKSAR v. XIAO PING AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 147 OF 2012

(ON APPEAL FROM DCCC NO. 1343 OF 2011)

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REASONS FOR JUDGMENT

Hon Barnes J (giving the reasons for judgment of the Court):

Background

1.  The three appellants were jointly charged with one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The 3^rd appellant was additionally charged with one count of theft, contrary to section 9 of the Theft Ordinance.

2.  They pleaded not guilty to the charges and the case was heard before Deputy District Judge Lin, who convicted all the three of them of attempted theft and also convicted the 3^rd appellant of theft.

3.  For attempted theft, the Deputy Judge sentenced each appellant to 26 months’ imprisonment.  For the theft charge, he sentenced the 3^rd appellant to two months’ imprisonment, which was to be served concurrently with the 26 months for attempted theft, so the total sentence was still 26 months.

4.  All three appellants applied for leave to appeal against sentence.  Leave was granted by the Honourable Mr. Justice Yeung VP on 31 August 2012 to the three appellants to appeal against their sentences.  The 3^rd appellant applied for leave to appeal against conviction as well, but was refused by Yeung VP.

Facts

5.  The facts were that on the day in question, a police constable, who had just finished an anti-pickpocket operation and was about to go off duty, saw the three appellants hanging around outside Pioneer Centre, Nathan Road, Mongkok and paying their attention to the backpacks and handbags of the pedestrians. He then tailed behind them and called for assistance through his beat radio.

6.  The constable followed the three appellants to reach Sai Yeung Choi Street, Mongkok.  The 3^rd appellant signalled to the 1^st appellant by pointing to a shop.  The 1^st appellant nodded and entered the shop.  At that time a female shopper was selecting garments.  The 1^st appellant stood beside her, picked up a garment with one hand and at the same time put the other hand into the handbag which the shopper was carrying, but after a very short moment she withdrew her hand.  At that moment, the 2^nd appellant went into the shop and stood behind the shopper.  He held a corner of the garment which the 1^st appellant was holding in her hand and then he raised his hand, thus lifting up part of the garment.  The 1^st appellant made use of this opportunity and put her hand into the shopper’s handbag again, but she drew back her hand immediately.  Then, the 1^st and the 2^nd appellants left the shop and joined the 3^rd appellant, who was outside the shop.  The 3^rd appellant shook her head to the 1^st appellant, who, likewise, shook her head to the 3^rd appellant.  The evidence showed that the shopper’s bag was in fact a carrier bag.  The shopper put her personal property in the bottom of the bag, and the top of her personal property was covered by a plastic bag with some sundry items inside.  This explained why the 1^st appellant put her hand into the bag twice but failed to get anything.

7.  The activities of the three appellants were witnessed by the policemen who were on duty nearby.  Subsequently, they were arrested outside the MTR station on Prince Edward Road by the policemen.

8.  The police found a personal Octopus card on the 3^rd appellant.  The holder of the card was a girl student, who lost the card sometime between 5 to 6 p.m. on the same day when she was riding the MTR.  The Deputy Judge found that the 3^rd appellant, with dishonest intent, retained the Octopus card in her possession.

Reasons for sentence

9.  The Deputy Judge considered the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and took into account the aggravating features mentioned therein. In addition, the Deputy Judge referred to a recent case, HKSAR v Chan Mei Yee, Carman[1] [2010] 4 HKC 571.  He said that in Chan Mei Yee the Court of Appeal had found that a starting point of 30 months was not excessive, where the case happened in a crowded area and at the time of the offence the defendant was a repeat offender.

10.  The Deputy Judge was of the view that this case happened in a public place, and that even though there were not a large number of pedestrians at the material time, the commission of the offence in this well-known shopping area in Mongkok was an aggravating feature.  The Deputy Judge did not classify the case as one involving an element of international crime gang despite the fact that both the 1^st and the 2^nd appellants were residents of the Mainland.

11.  In sentencing, the Deputy Judge had regard to the fact that the three appellants were deaf-mutes, their clear records and their personal backgrounds (The 1^st appellant was 40 years old. She was separated and lived with her six year old daughter and aged parents.  She was dependent on the money provided by her ex-husband.  The 2^nd appellant was 43 years old and was provided for by her parents.  Besides being a deaf-mute, he has also some problems with his eyesight.  The 3^rd appellant was 45 years old.  She lived with her husband, whose hearing was also defective, and her nine year old son.  She lived on CSSA.).

12.  The Deputy Judge used 28 months as the starting point and, having taken into account the fact that they were all handicapped persons, and that furthermore, the 1^st and the 2^nd appellants were Mainlanders, who would encounter more difficulties during their incarceration in a correctional institution than people without disabilities would, decided to exercise his discretion to reduce it by two months, thereby arriving at the sentence of 26 months’ imprisonment.

13.  As for the theft charge of which the 3^rd appellant was convicted, the Deputy Judge considered that the facts were similar to those of a case of“appropriation of lost property”[2]. In view of the fact that the 3^rd appellant had already been sentenced to prison for the other offence, he sentenced her to two months’ imprisonment, which was to be served concurrently with the 26 months’ imprisonment for attempted theft.

Grounds of appeal

1^st appellant

14.  The 1^st appellant did not prepare any written submission.  She told this court that she regretted for what she had done and hoped that her sentence could be reduced.

2^nd appellant

15.  The 2^nd appellant submitted a letter to this court.  He reiterated that apart from being unable to speak or hear, he was having trouble with his eyesight.  Basically, he also hoped that his sentence could be reduced.

3^rd appellant

16.  The 3^rd appellant adopted the written submission which was filed earlier on.  What she essentially said was that she was innocent.  She knew that the 1^st and the 2^nd appellants regretted for what they had done, but she said that she was innocent and that she could not reconcile herself to the fate of having to be unjustly sent to prison.  She hoped that her sentence could be reduced.

Respondent’s reply

17.  Mr. Tam, Acting Senior Assistant Director of Public Prosecutions, for the respondent, submitted that the starting point of 28 months might be at the high end of the range but was not manifestly excessive, that the Deputy Judge had already reduced it to 26 months, and that therefore the sentences were not too severe.

Our considerations

18.  Sentencing guidelines for pickpocketing cases were laid down by the Court of Appeal in Ngo Van Huy.  Putting it briefly, the Court of Appeal held that the basic starting point for a first time offender was 12 to 15 months’ immediate imprisonment, and that if there were any aggravating features, a higher sentence could be imposed according to the circumstances.  Aggravating features include the use of a weapon or a sharp object by the offender during the commission of the offence; the offence was committed in a crowded place (e.g. the MTR, the racecourse or a crowded shopping area); the offender acted in concert with other members of his gang; the case involved an organized ring of pickpockets — in particular a ring of pickpockets coming to Hong Kong from overseas to commit crimes; and so on.

19.  In Chan Mei Yee, the offender was 28 years old and had a lengthy record of criminal convictions, of which no fewer than 11 were related to theft.  The day she committed the offence was not long after her release from imprisonment for her last offence.  The offence in that case took place in the following circumstances:  The offender and an accomplice followed their victim in a busy street in Mongkok. The accomplice unfurled an umbrella, standing behind and near the victim, while the offender had in her hand a flyer which she used to cover the backpack of the victim.  She opened the zip by about eight inches and inserted her hand into the backpack.  At this juncture the policemen, who had been watching the offender and her accomplice, came out and took action.  A sergeant grabbed hold of the offender’s hand and both persons were arrested.  The trial judge used 2½ years as the starting point, to which he added nine months on account of the appalling record of the offender, making a total of 39 months’ imprisonment.

20.  The Court of Appeal considered Ngo Van Huy and analyzed a number of cases about pickpocketing (including HKSAR v Tan Hong Sheng [2006] HKCU 938, R v Saldana Alca Jose & Anor [1997] HKCU 103, HKSAR v Duong Van Dung [2004] HKCU 1386, HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Liao Mei & Ors [2005] HKCU 17, etc.).

21.  The Court of Appeal pointed out that not all pickpocketing cases involving more than one offender warranted a starting point of 2½ years’ imprisonment.  Having gone through the facts of the case, the Court of Appeal held the view that the starting point of 2½ years’ imprisonment should not have been taken before considering other factors.  The Court of Appeal remarked that one should commence with a starting point of 15 months’ imprisonment on the basis of the facts of the attempted theft charge in question, and then address the aggravating features.  Taking into account the fact that the offence took place in a busy street, that the offender acted in concert with another person and the offender’s many previous criminal convictions, the Court of Appeal found that an overall sentence of 2½ years was appropriate.  Accordingly, the appeal was allowed and the sentence was reduced from 39 months to 30 months.

22.  In sentencing the appellants, the Deputy Judge specifically considered Chan Mei Yee.  He regarded the fact that the appellants acted in concert and that the offence took place in a well-known shopping area as aggravating features.  He did not treat the fact that the 1^st and the 2^nd appellants came to Hong Kong specifically for the purpose of committing crimes as an aggravating feature.  Having taking into account the clear record of the appellants, he concluded that a starting point of 28 months was appropriate.

23.  In our judgment, since the three appellants were first time offenders, one should start off with a starting point of 15 months’ imprisonment.  The three of them acted in concert and committed the offences in a well-known shopping area.  These were aggravating features.  However, their operation was not well planned, nor was the shopping area crowded at the material time.  These factors should have been taken into consideration.  The 28 months adopted by the Deputy Judge meant that the sentence was increased by 13 months (28 months — 15 months).  We find that in all the circumstances of this case it was too severe.  After considering the aggravating features, we hold that the starting point should be 21 months.

24.  As for the theft charge concerning “appropriation of lost property”, we agree that the term of two months was appropriate.

25.  The Deputy Judge reduced the sentences by two months for the reason that the three appellants were deaf-mutes.  We hold that in all the circumstances of this case, the two months reduction of the sentences was a correct exercise of his discretion.

26.  The appropriate sentence for each of the three appellants in respect of the attempted theft charge should be 19 months’ imprisonment.

27.  The nature of the theft charge which the 3^rd appellant additionally committed was different from that of attempted theft, and it cannot be said to be belonging to the same incident; therefore, the sentence for which should be served consecutively, not concurrently.  After considering the totality principle, we hold that the appropriate total sentence should be 20 months’ imprisonment.

28.  For the above reasons, we allow the appeal lodged by the three appellants.

Attempted theft

29.  The 26 months’ imprisonment imposed on each of the three appellants are set aside and replaced by 19 months’ imprisonment.

Theft

30.  The two months’ imprisonment to which the 3^rd appellant was sentenced stands, but one month of which shall run consecutively to the 19 months for the attempted theft.  The total sentence is 20 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.