HKSAR v. NG AH SHAN

CACC 138/2017

[2018] HKCA 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 138 OF 2017

(ON APPEAL FROM DCCC 953 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with nine charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and one charge of possession of identity cards relating to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. The nine charges alleged theft of property between 1 October 2010 and 8 June 2016 and every theft involved handbags and wallets containing items of property such as Hong Kong Identity Cards, Home Visit Permits, bank and other cards including an Octopus card. The 10^th charge of possession of identity cards relating to others concerned the Hong Kong Identity Cards which had been stolen by the applicant and whose theft was the subject of the 1^st to 7^th charges and the 9^th charge. The 10^th charge also included an identity card that was not the subject of a theft charge and the 8^th charge was a theft charge of a handbag, iPhone, wallet, bank and other cards and a quantity of currency.

2.  On 2 May 2017 the applicant appeared before District Judge Casewell (“the judge”)for trial.  At the request of the applicant the case was adjourned to 4 May 2017.  On 4 May the applicantpleaded not guilty to all these offences.  The prosecution called five witnesses and at lunchtime the court adjourned until the following day.  On 5 May the applicant, through her counsel, informed the court of her intention to plead guilty to all the charges.  The applicant was re-arraigned and, after pleading guilty to the charges, her case was adjourned to 9 May for mitigation to take place.  On 10 May 2017 she was sentenced by the judge to a total period of 35 months’ imprisonment.

3.  The applicant subsequently filed a Notice of Application for Leave to Appeal against her sentence (Form XI) and at the hearing of her application I refused it and said I would give my reasons for doing so at a later date.  These are my reasons.

The background to the offences

4.  The theft offence that is the 1^st charge was committed in mid-October 2010 when the victim, whilst shopping at Harbour City, Tsim Sha Tsui, placed her handbag in her son’s stroller and then left the stroller unattended.  The victim subsequently noticed that her handbag had been stolen.

5.  The victim in the 2^nd charge had her wallet stolen from her in mid-January 2011 when she was walking alone in Sham Shui Po.

6.  The victim in the 3^rd charge placed her handbag in a shopping trolley at Festival Walk, Kowloon Tong in mid-February 2011.  She briefly left the trolley unattended and later realized that her handbag had been stolen. 

7.  The victim in the 4^th charge was shopping in a boutique in Causeway Bay in May 2011.  Whilst trying on clothes she left her handbag outside the fitting room.  She later discovered her handbag had been stolen.

8.  The victim in the 5^th charge had her handbag stolen whilst trying on clothes in a boutique in Harbour City in August 2011. 

9.  The victim in the 6^th charge also had her wallet stolen whilst trying on clothes at Zara in IFC Mall, Central.  This occurred on 28 November 2015.

10.  The victim in the 7^th charge placed her handbag in a shopping trolley in Festival Walk, Kowloon Tong in December 2015.  She left the trolley unattended for a while and later discovered her handbag had been stolen.

11.  On 28 February 2016 the victim in the 8^th charge placed her handbag in a shopping trolley in a supermarket in IFC Mall, Central.  She did not pay attention to the trolley and later discovered her handbag had been stolen.

12.  The victim of the 9^th charge was shopping in Tsim Sha Tsui around 8 June 2016.  He placed his wallet in his baby’s stroller and left the stroller unattended.  He later discovered his wallet had been stolen.

13.  The applicant rented premises at Room B, 9/F, 226 Ki Lung Street, Sham Shui Po, from 15 July 2010 to 8 June 2016.  The police identified the applicant from CCTV footage and on 8 June 2016 police seized from her premises a number of items such as Hong Kong Identity Cards, Home Visit Permits, Mainland identity cards and handbags.    

The mitigation

14.  The applicant’s counsel, Mr Patrick Cheung, informed the judge that the applicant was 44 years of age.  She had been married but her marriage had ended in divorce some 10 years previously.  The applicant has a daughter aged 19 and a son aged 16, both of whom live with their father, the applicant’s former husband.  Prior to her arrest for these offences the applicant worked as a part-time restaurant waitress earning about $400 a day.

15.  As a result of physical abuse by her former husband she has poor vision in her right eye.  Also, she has suffered from depression since the year 2000.

16.  The applicant has a criminal history and information on her can be found in a judgment of the Court of Appeal bearing her name that is reported in [2015] 1 HKLRD 783.

17.  Mr Cheung submitted that the criminality of the possession of an identity card of another was subsumed in the theft charges and so the sentence for this charge should be made wholly concurrent with the theft charges.  Mr Cheung said that the only reason the applicant kept the identity cards was because she did not know what to do with them and had no intention to use them for an illegal purpose.

18.  In respect of the sentencing discount that should be awarded to the applicant for her plea of guilty, Mr Cheung suggested that it should be 20%.  In support of this submission Mr Cheung argued that the applicant had admitted a large part of the prosecution case and she had not deliberately prolonged the trial or put the prosecution to unnecessary expense.

19.  The applicant’s criminal record dated back to 1998 when she was convicted of theft in the form of shoplifting.  She had two further convictions for the same conduct in the year 2000.  She was convicted of theft offences in 2001, 2002 (shoplifting), 2003, 2004, 2005 (pickpocketing), 2006, 2007, 2008, 2009 (shoplifting), 2011, 2012 and 2013 (pickpocketing). 

The judge’s Reasons for Sentence

20.  After setting out the facts underlying each of the charges the judge noted the criminal record of the applicant and echoed what the Court of Appeal had said of her in 2014:

“The applicant is obviously an incorrigible recidivist. She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her.”[1]

21.  The judge adopted the same approach to sentencing as had been confirmed as appropriate by the Court of Appeal.  That is, employing the pickpocket sentencing guideline, the judge adopted a starting point of 15 months’ imprisonment for each of the nine theft charges which he then enhanced by 9 months to take account of the aggravating factor of the applicant’s criminal record.  This resulted in a final starting point of 24 months for each of the nine theft charges.

22.  The judge then considered the starting point that he should adopt for the 10^th charge.  He regarded the fact that the applicant possessed nine identity cards as aggravating the offence and said he could see no reason to distinguish this charge from the theft charges.  He said he would adopt the same starting point of 24 months’ imprisonment for the 10^th charge as he had adopted for the nine theft charges.

23.  The judge then turned to the question of what discount he should allow the applicant for her late plea of guilty.  Noting that the change of plea had occurred not on the first day of trial but well into the prosecution case the judge said that a 20% discount was not appropriate for the applicant and he would award her only a 15% discount.

24.  Discounting the 24 months’ starting point by 15% reduced the final sentence for each charge to 20 months’ imprisonment.      

25.  The judge next considered the appropriate totality of sentence. Noting that charges 1 – 5 were quite old the judge said he would take an overall starting point of 3½ years’ imprisonment which when reduced by 15% resulted in a final sentence of 35 months’ imprisonment. He achieved this sentence by ordering that the sentences on charges 1 – 5 and 6 – 10 be served concurrently with each other but that 15 months of the sentences for charges 6 – 10 be served consecutively to the sentences imposed on charges 1 – 5.

The applicant’s grounds of appeal

26.  The applicant is not legally represented and so has not filed any Perfected Grounds of Appeal.  However, in a letter to the court dated 28 September 2017 she has set out a number of complaints. She said that it was wrong of her to plead guilty only halfway in the trial and this occurred because some of the offences were so old that she had no recollection of them and she did not really understand the legal advice she was given.

27.  In respect of the 10^th charge the applicant said that her retention of the identity cards was “an unconscious and meaningless act” by her and she kept them at her home “because I was afraid that they would be picked up and used by others to do something illegal if I discarded them offhandedly.”

28.  She said that her 2013 case was more serious than the present one as she had been sentenced on the pickpocketing tariff.

29.  Finally, she claimed:

“I reoffended due to psychological problem and insufficient self-control … (I) was suffering from rather serious depression, I was crazy and out of control at that time.”

30.  At the hearing of her application she repeated these complaints. She misunderstood the orders the judge made to arrive at a total sentence of 35 months and these were explained to her.

Discussion

31.  In my view none of the applicant’s complaints or comments are capable of founding a reasonably arguable ground of appeal.

32.  There is no error by the judge in his approach to sentence and was quite entitled to adopt the approach set out by the Court of Appeal in the applicant’s previous trial and appeal.

33.  The starting point for each theft charge and the enhancement of those starting points are not excessive.  In the applicant’s Court of Appeal judgment the applicant’s conduct was described as “walking away with another person’s property.”  In response to a submission advanced on behalf of the applicant that this form of theft was not as serious as pickpocketing the Court of Appeal said:

“24. … If ‘walking away with another person’s property’ is taken to mean that a defendant dishonestly takes away property carelessly left behind by another person or, conveniently seizing the opportunity presented by another person who inadvertently fails to keep his or her property in safe custody, takes that property away, then the offences committed by the applicant in the present case were not ‘walking away with another person’s property’. If ‘walking away with another person’s property’ is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately, steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of ‘walking away with another person’s property’ is essentially as serious in nature as the offence of ‘pickpocketing’. This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience. …

25. … As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft offence and the offence of ‘pick-pocketing’ in terms of gravity.

26. We have to emphasize that in the present case it is not that the applicant stole properties left behind by the victims or took properties away in passing when the careless victims were not keeping them in safe custody. The applicant consciously preyed on the negligence of the victims and, acting with premeditation and deliberately, took the opportunity presented by the victims’ inattention and stole their belongings which were placed beside them, including their purses, which contained not only cash but also the victims’ personal items such as their identity document(s) and bank card(s). The gravity of the offence committed by the applicant falls squarely within what the Court of Appeal emphasized in Ngo Van Huy.

27. We agree with the trial judge that, at least in relation to the offences under Charges 1 and 3, the gravity of those offences is the same as that of the offence of ‘pickpocketing’ and the starting point adopted for the former should also be the same as that for the latter. …”[2]

The applicant’s conduct in the present theft charges is identical to her conduct as described by the Court of Appeal.  There was nothing erroneous in the judge adopting a similar approach to the sentencing of the applicant for these current charges.   

34.  In respect of the 10^th charge the final starting point may be on the high side but I can see no basis for saying it was excessive.  In any event, it ultimately had no meaningful effect on the final sentence.

35.  The total starting point of 3½ years is not excessive and was arrived at by a proper application of the totality principle.  The judge divided the offences into two sets and the division would appear to have been done by reference to when the offences were committed.  Charges 1 – 5 were old and pre-dated her most recent prison sentence.  Charges 6 – 10 and especially charges 6 – 9, would have been committed after she had been released from prison after serving the sentence imposed by the Court of Appeal.

36.  The applicant’s psychological state was known to the judge but no attempt was made by the applicant’s counsel to make anything of it as a significant mitigating feature.  It was not relied on as in any way lessening her culpability for these offences.

Conclusion

37.  For these reasons I refused the applicant leave to appeal against her sentences.