HKSAR v. SHARIF ASMAHAN MUSTAFA RAMA

HCMA527/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.527OF 2004

(On Appeal From ESCC 1606 Of 2004)

---------------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted on 29 April 2004 of one charge of theft. She was sentenced on the same day to 12 months' imprisonment. The appellant now appeals that sentence.

2. The facts which she admitted at the time she was convicted were that on 9 April 2004, in company with another man, she entered a shop. She and that man purchased a pack of bulbs, and the appellant took one US$100 banknote from that man and proffered it to the shopkeeper for payment. The shopkeeper took out five HK$100 banknotes for the change, the purchase price of the two light bulbs being HK$280. The appellant asked him to give her one HK$500 banknote in the change. The shopkeeper took out his wallet to check if he had a HK$500 banknote and found that there were 22 HK$1,000 notes which were the deposit paid to him by a client in his wallet.

3. At this point the appellant who was standing close to him snatched one HK$1,000 banknote from his wallet. The shopkeeper took the HK$1,000 banknote back and placed it back in his wallet and the appellant then used her right hand to snatch all the HK$1,000 banknotes from the wallet. The shopkeeper managed to grasp hold of the banknotes she held in her hand, took them back and replaced them in the wallet. The man with the appellant immediately took out HK$300 banknotes and paid for the light bulbs. The shopkeeper accepted the payment, gave change and the appellant and her companion then left the shop. The shopkeeper checked his wallet, found that $10,000 were missing. He chased after the appellant and the man brought them back to the shop. Inside the shop, he told them that he had lost the money and the appellant was seen to be holding something in her hand and to drop onto the ground the banknotes that had been taken. Police were called and the appellant was arrested.

4. When the matter came up for sentencing, the magistrate was told that the appellant had a previous conviction. She sought the Brief Facts in that case and found that they were very similar to the facts in this matter. This played no part in the quantum of sentencing other than it indicated that the present matter was not an opportunity grasped by the appellant but was a method to take money which she had used before, and the magistrate found that the appellant was "a professional with her well practiced slight (sic) of hand and she was clearly acting in concert with the other male who went into the shop with her". With this I must agree.

5. The magistrate took as a starting point of 18 months' imprisonment and said this :

"In sentencing the Appellant I considered that this type of offence was similar in nature to the more serious types of pickpocketing. The normal starting point for an offence of pickpocketing is 12 to 15 months. This starting point can be increased where there are aggravating features that include acting in concert with others in well organized gangs. Similarly, professional pickpockets should expect to be sentenced more harshly than the general guidelines where they are acting in concert. The starting point in such cases can be 2 and 1/2 years. ..."

6. I find it difficult to argue that this particular case falls within the guidelines which should be applied to pickpocketing offences which are organized to the extent that a gang of persons is used. Pickpocketing, I take into account is presently a very prevalent offence and has been increasing. It is necessary to deter pickpockets that sentences increase and that other measures be taken to deal with this type of offence. This particular matter before me falls more within the class of cases that relate to the taking of handbags in shops while customers' attention is diverted or to the taking of money from tills when they are opened and to small but practised offences of that type.

7. I have not, nor has either counsel here before me this morning, come across this particular type of theft before. There is no need for general deterrence in respect of this sentence, however, given that the appellant has committed a previous similar offence using precisely the same method, she requires a personal deterrent. It is appropriate in this case she having been convicted of the same offence before, she is not of clear record.

8. Mr Surman argues that we do not know whether she was warned on the first occasion that should she re-offend deterrence would be an issue. I am not prepared to say that that prevents me from taking into account that deterrence of this particular appellant is a factor that should be considered in the sentence.

9. In all the circumstances, it seems to me that the appropriate starting point in this particular matter is one of 12 months' imprisonment, to be reduced to eight months' imprisonment to reflect the plea.

10. The appeal will be allowed to the extent that the sentence of 12 months' imprisonment is set aside and is replaced with one of eight months' imprisonment.