HKSAR v. CHAN HO KWAI

HCMA109/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.109 OF 2000

(On Appeal from FLC 2174 OF 1997)

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J U D G M E N T

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1. The appellant was sentenced by Mr Ernest Lin in the Fanling Magistracy to 15 months after he pleaded guilty to a pickpocketing offence. He now appeals against the sentence.

2. The offence was committed in the Immigration Departure Hall of Lo Wu KCR Building. The appellant had stolen one mobile telephone belonging to the victim. He is aged 39 and has four previous convictions, three of which were for pickpocketing offences.

Starting point

3. Mr Wong appearing for him has argued that the starting point of 20 months adopted by the magistrate was too high, and in support of that submission, Mr Wong has quoted five cases.

4. Firstly, in R v. Hau Tai-wai HCMA769/1987 where the offence was committed on board a train at Lo Wu; the appellant pleaded guilty and had four previous convictions for theft. He was sentenced by the magistrate to 20 months which was reduced on appeal to 12 months. Bewley J in that appeal said that the starting point should be in the region of 15 months.

5. The second case was R v. Leung Kim-bor, HCMA774/1988 where the offence was committed on board an MTR train. In that case, Hooper J was of the view that the starting point should be in the region of 15 months.

6. In R v. Vy Van Kien and Another [1991] 1 HKLR 422, Penlington JA reviewed all the relevant authorities including the two cases mentioned above. In those first two cases, of course, it was not mentioned by the respective appeal judges that the fact that the offence was committed on board a public train was an aggravating factor. In Vy Van Kien, Penlington JA expressed the view that where the pickpocketing occurred in situations where the public was particularly vulnerable, such as on trains and other forms of public transport, or in a crowd at the races or other places of entertainment, that would be an aggravating factor. He was of the view that the starting point of 12-15 months after trial would be correct, but this should be increased if there were aggravating factors, such as the use of a weapon, or if the offence was committed in a place where the public, though no fault of its own, is at risk, such as on public transport and in crowded places, such as the race courses.

7. In R v. Chiang Pok Wing, HCMA589/1996, Chan J (as he then was) doubted the wisdom of considering the fact that an offence was committed in the race course as an aggravating factor. In that case, he upheld the starting point of 18 months, not because of any aggravating factors but because of the appallingly bad record of that appellant.

8. The last case quoted by Mr Wong was HKSAR v. Ho Minh Cong HCMA547/1999 where the starting point of 18 months was upheld by Beeson J. In that case, the offence was committed in Nathan Road and involved four men who were obviously acting jointly and by way of an organised operation.

9. Mr Wong has submitted to me that the starting point of 20 months adopted by the magistrate here was too high. He also submitted to me that the fact that it occurred in the Lo Wu Terminal Building should not be regarded as an aggravating factor.

10. Miss Tsang for the respondent has relied on the case of Vy Van Kien to support her submission that where the pickpocketing occurs in crowded places, that should be considered as an aggravating factor. In reply, Mr Wong makes, I think, a valid point that inasmuch as almost all pickpocketing offences occur in crowded places, that really should not be regarded as an aggravating factor.

11. While somewhat agreeing with Mr Wong, my view is that where you have particularly crowed places frequented by the public, such as the race course, Lo Wu and other points of departure, the public should be protected against pickpockets who obviously descend upon these places because it would be easier to commit the pickpocketing offence where you have such overcrowdedness. My view of that is fortified by the notorious fact that a lot of pickpocketing cases occur in the Lo Wu Departure Hall. In my view, where there is such an aggravating factor, a starting point of 18 months is justified. I agree with Mr Wong that the starting point of 20 months adopted by the magistrate here was too high, so in my judgment the starting point should have been 18 months.

Discount for plea

12. Coming now to the discount which was in fact given by the Magistrate to the appellant, namely, one of five months, that came to a 25% discount. Mr Wong has submitted, to which Miss Tsang takes no issue, that the usual discount of one-third should have been given to the appellant. He relies on a number of cases, but I think it is sufficient to just quote the final case that he relies upon, which is HKSAR v. Chu Shi Keung [2000] 1 HKLRD 495. In that case, Stuart-Moore V-P sitting in the Court of Appeal said this :

" All we need to say is that unfortunately this is an example of an offender being deprived of the full discount of one-third for his plea of guilty where no valid reason, having regard to current sentencing practice, had been provided for the course taken. Time and again, this Court has said that when a person is caught red-handed, as this applicant was, this does not provide a good reason for a failure to give the normal discount."

13. In one of the earlier cases, HKSAR v. Poon Ki Chiu, HCMA209/1999, Woo J quoted from a Court of Appeal judgment of HKSAR v. Wong Ka-kuen & another, Cr App No 35 of 1998 (28 January 1999, unreported), where the Court of Appeal said :

"... This Court has stressed on frequent occasions that in the absence of good reason where a timely plea has been entered, a defendant is entitled to his full one-third discount. Being caught 'red handed' is not, in the view of this Court, a sufficient reason to disallow the full discount."

14. In my judgment, therefore, the Magistrate was in error in not giving this appellant the full usual one-third discount. No reason was given by the magistrate for adopting the course that he did. In the event, the appeal is allowed to the extent that the sentence is reduced from 15 months to 12 months.