HKSAR v. TAN HONG SHENG

CACC 238/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 238 OF 2005

(ON APPEAL FROM DCCC NO. 104 of 2005)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.  On 30 August 2005, Woo VP refused to grant leave to the applicant – Tan Hong Sheng to appeal against conviction and sentence. On 14 September 2005, the applicant sought leave to appeal out of time. He was late by about two days. We disregard such short delay and proceed to hear his application on its merits.

2.  The applicant, together with Chen Shuda (Chen) and Lai Xianlin (Lai) appeared before Deputy Judge Mierczak in the District Court on a joint charge of theft (pick-pocketing).

3.  Chen pleaded guilty and was sentenced to one year and eight months’ imprisonment. The applicant and Lai were convicted after trial and sentenced to 2 years and six months’ imprisonment.

Prosecution Case

4.  The prosecution case against the applicant was that he, together with Chen and Lai, stole a mobile phone from the handbag of the victim.

5.  The evidence against the applicant came from two police officers who were on anti-theft operation near the Kowloon Star Ferry Pier on 27 December 2004.

6.  Lai was seen standing closely to the victim to prevent her from changing direction. The applicant then used his hand to hold the victim’s handbag steady while Chen opened the zipper of her handbag and removed from it a mobile telephone.

Defence Case

7.  The applicant and Lai denied the prosecution allegation. They said they were visitors from the Mainland and were sightseeing together with Chen. They walked closely to one another to avoid losing each other. They said they did not know or expect Chen to steal from the victim. They also said they did not take part in it and were in fact shocked by what Chen did. Chen also said that on seeing the victim, he had the sudden impulse and took her mobile phone from her handbag.

8.  The judge accepted the evidence of the police officers and rejected the defence evidence. The judge found that Chen had lied to try to exonerate the applicant and Lai.

Grounds of Appeal Against Conviction

9.  In his homemade grounds, the applicant repeated the suggestion that it was Chen who committed the offence on his own. He emphasized that there was no fingerprint or photographic evidence linking him to the offence. He said the police officers fabricated the evidence against him and abused him while he was in police station.

10.  The applicant threatened to hold a press conference and then via the Internet to expose  “the dark court of Hong Kong”.

11.  In his submission before us today, the applicant repeated the suggestion that it was Chen who committed the offence on his own and that the judge was wrong to rely on the police evidence alone to convict him.

12.  The case turned on the assessment of the credibility of the police officers and those of the applicant and his co-accused. The judge was entitled to accept the evidence of the police officers who clearly saw the applicant committing theft as a joint enterprise with Chen and Lai. The absence of fingerprint or photographic evidence does not cast any doubt on the prosecution case against the applicant. The threat to expose  “the dark court of Hong Kong” carries no weight whatsoever.

13.  On the evidence, the applicant was rightly convicted. We find no valid basis to upset the decision of the judge. The application for leave to appeal against conviction is refused.

Grounds of Appeal Against Sentence

14.  The judge pointed out that the 12 to 15 months’ starting point for pickpocket as established in HKSAR v Duong Van Huy & Others [2005] 2 HKLRD 1. The judge further identified four aggravating factors, namely (1) that the offence was committed in a crowded area where the public was at particular risk; (2) that the offence was carried out by three accused jointly; (3) that there was an international element as the applicant and his co-accused committed the offence the very next day after they arrived in Hong Kong from the Mainland; and (4) that the offence was organised, well-planned and quite professional.

15.  The applicant pointed out that the guideline for pickpocket was 12 to 15 months’ imprisonment and emphasized that even if it was to be increased by one-third, the resulting sentence should not exceed 20 months.

16.  The applicant said a 30 months’ sentence is excessive when there was no instrument used in the course of the theft and when he had not shown any disrespect for the court.

17.  The applicant also emphasized that he had no previous conviction; and whether or not the offence was committed within a day or a longer time after his arrival in Hong Kong should have no bearing on sentence.

18.  Pickpocket offence is both serious and nasty, as it not only causes financial loss, but could also result in grave inconvenience to its victim.

19.  We wish to repeat what we said in Ngo Van Huy (supra) “theft by pickpocket 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 ease 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.”

20.  The appellant in Ngo Van Huy was a pickpocket who worked alone. In allowing his appeal and varying his sentence, the Court of Appeal adopted a starting point of 15 months and increased it by 9 months “on account of the appellant’s appalling previous record of theft” (he had 35 previous convictions, of which 17 were for theft) and then by another 3 months because the offence was committed in a crowed area.

21.  The Court of Appeal then reduced the sentence by one-third to 18 months to reflect the guilty plea, and then enhanced it by one-third under s 27 of the Organized and Serious Crimes Ordinance (Cap 455) to take the overall sentence to 24 months.

22.  Applying the approach in Ngo Van Huy, the starting point of 30 months adopted by the judge appears to be excessive when the applicant has a clear record. However, Ma CJHC made it clear that where “an 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.”

23.  Ma CJHC also quoted with approval the following comments of P Chan J (as he then was) in R v Saldana Alca Jose and another CACC 655 of 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 2 ½ years’ imprisonment.”

24.  Mr David Leung, Senior Government Counsel for the respondent, rightly draws our attention to a number of decisions, including HKSAR v Liao Mei & Others CACC 432 of 2004, HKSAR v Pham Ngoc Trinh CACC 439 of 2004, HKSAR v Jiang Siyuan CACC 160 of 2005 and HKSAR v Zhang Liping and Another in which this court approved a starting point of 2 ½ years’ imprisonment for pickpocket offence committed by two or more defendants.

25.  In HKSAR v Liao Mei & Others andHKSAR v Jiang Siyuan (supra), the appellants were two-way permit holders who came to Hong Kong from the Mainland, in the guise of tourists, with the specific purpose of operating as team to steal from unsuspecting victims. Despite the fact that the appellants did not have any criminal record in Hong Kong, this court approved a starting point of 2 ½ years’ imprisonment.

26.  The fact that the applicant and his co-accused committed the offence the very next day after they arrived in Hong Kong from the Mainland, contrary to the applicant’s submission, is indeed a most serious aggravating factor as rightly identified by the judge.

27.  We see no reason not to follow our earlier decisions in endorsing a starting point of 2 ½ years’ imprisonment despite the fact that the applicant does not have any criminal record in Hong Kong.

28.  The 2 years and 6 months’ imprisonment on the applicant is not, in our view, manifestly excessive. His application for leave to appeal against sentence out of time is also dismissed.