HKSAR v. LAW KWOK HUNG

HCMA 487/2019

[2020] HKCFI 86

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 487 OF 2019

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESCC 1996/2019)

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BETWEEN

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JUDGMENT

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1.  The Appellant pleaded guilty with one count of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210 at the Eastern Magistrates’ Court, the Appellant appeared in person and declined duty lawyer service. The amended brief facts were interpreted to him and he agreed the same. The Appellant also indicated that he had nothing to say in mitigation. Based on the Appellant’s own plea and admission, the Principal Magistrate convicted him as charged and sentenced him to 6 months’ imprisonment.

2.  The Appellant now appeals against his conviction and sentence but only filed a Notice of Appeal against conviction, Form 101, and also against sentence, Form 102.  The Appellant has not submitted other grounds of appeal, except the pre-printed general grounds on these forms.

3.  The Appellant now in this court saying that the offence was not done by him and in Magistrates’ Court he did not hear anything properly.  However, this was clearly not what transpired in lower court.  The transcripts show that the Appellant did plead guilty and agreed the amended facts, as what had been interpreted to him.

4.  The amended brief facts were straight forward and as follows.  At around 12.30 pm on 19^th August 2019, PW1 Ms Tsang, started working in a beverage shop at Shop D1, G/F, Southorn Centre, Hennessy Road, Wan Chai and she put her belongings near the cashier including:

(1)  Adidas cross shoulder bag;

(2)  One Coach wallet in blue;

(3)  One card holder in green;

(4)  One RHA handset;

(5)  One Hong Kong ID card of PW1;

(6)  One home return permit of PW1;

(7)  One HSBC ATM card in her name;

(8)  The Octopus card;

(9)  One Disney annual pass;

(10)  One IVE student card;

(11)  Cash $600.

The total value of all the items were $6,179.

5.  At around 10.15 pm, she found these items missing.  The CCTV system captured a view of the Appellant taking away the said property at 3.04 pm and left.  A report was made to the police.  On the next day, PW1 found some of the items, including (1), (5) to (7), (9) to (10) as stated above in a planter under O’Brien footbridge.  At 3 pm on 23 August 2019, PW1 bumped into the Appellant in Wan Chai and recognised him.  A report was made to the police and the Appellant arrested.

6.  A shirt worn by the Appellant was also seized when arrested, as it was worn by him at the material time.  When cautioned by the police, the Appellant admitted having stolen PW1’s property out of greed.

Reasons for Sentence

7.  The Appellant had 36 previous convictions, 28 of which were dishonesty related.  His previous record dated from 1979 and his last two convictions, both in 2019, were for similar offences of theft and he was sentenced to concurrent term of 2 months’ imprisonment.

8.  The Principal Magistrate had referred to HKSAR v Chan Wai Kit HCMA 130/2014, where the Appellant pleaded guilty to five counts of theft and one count of assault.  He stole one mobile phone from a shop.  When he walked past the shop a few days later, the shopkeeper recognised him and called a security guard to stop him.  He assaulted the security guard.  The police retrieved from him two mobile phones.  His admission revealed that he has stolen one mobile phone from each of the five shops within one week.  His sentence was 7 months in total and his appeal against sentence was dismissed, his sentence was said to be on the lenient side as the Magistrate could have adopted the sentencing guideline for pickpocketing. 

9.  The Principal Magistrate stated that the facts of that case were rather similar to the present one and she also considered sentencing guideline in respect of offence of theft by pickpocketing.  In HKSAR v Ngo  Van Huy [2005] 2 HKLRD 1, the guideline sentence of 12 to 15 months’ immediate imprisonment after trial for first time offenders should be imposed where there are no aggravating factors.  An aggravating feature specifically mentioned was where the accused was a repeated offender, or worse, a persistent one.

10.  The Principal Magistrate further considered the Court of Appeal case HKSAR  v Ng Ah Shan, CACC 138/2017, where the Appellant stole other people’s property when the victims were not paying attention.  The court rejected the contention that it was not as serious as pickpocketing and stated that,

“24. …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’s property’ is essentially as serious in nature as the offence of pickpocketing’.”

“25. …As long as the defendant, acting with premeditation and deliberately, has taken advantage of 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 ‘pickpocketing’ in terms of gravity.”

11.  The Principal Magistrate lastly considered that, save for the Appellant’s plea of guilty, there was no mitigation of weight.  The Appellant had a criminal record dated back to 1979 and had many offences involving dishonesty, the most recent one being in July 2019. The Appellant was a persistent offender and she took a starting point of 9 months’ imprisonment on the charge, giving the usual discount of one-third for plea of guilty and sentenced the Appellant to 6 months’ imprisonment.

Discussion

12.  The Appellant had pleaded guilty and agreed the amended facts.  Conviction was therefore duly entered.  It was only in circumstances where an unequivocal guilty plea can be considered a nullity, as stated in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 on the following grounds:

“(1) The facts admitted by the defendant did not amount to the offence with which he was charged;

(2) The admitted facts are equivocal as to guilt;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) The plea was tendered involuntarily, induced by duress or misrepresentation or was not an exercise of free choice;

(5) The plea was induced by fraud or made under a fundamental mistake; or

(6) The plea did not result from a deliberate and informed decision.”

13.  The Appellant had made no affirmation nor submission in support of his appeal against conviction.  As submitted by the Respondent, the facts admitted by the Appellant did amount to the offence with which he was charged.  The charge was not defective on its face, or invalid or unclear. There is no suggestion that the Appellant pleaded guilty as a result of any force or fraud perpetrated on him or was not in the exercise of free choice or from any mistake as to the nature of the offence charged.  So the Appellant’s unequivocal and unambiguous plea of guilty to the offence was not a nullity.

14.  Now that it had not been shown that any of the above grounds was satisfied, the Appellant’s appeal against conviction must therefore be dismissed accordingly.

Appeal against sentence

15.  The general ground of appeal against sentence was that it was too severe.  There is no sentencing tariff for the charge of theft generally.  Each case turns on its own facts.

16.  For the offence of pickpocketing, as stated above in HKSAR v Ngo Van Huy, the starting point for the offence of pickpocketing committed by a first offender, is immediate imprisonment of 12 to 15 months, and it will be enhanced if aggravating factors are present.

17.  Based on the facts of the present case, and as observed by Ng Ah Shan, the Principal Magistrate could have adopted a much higher starting point for sentence but she was just lenient to adopt a starting point of 9 months, not to mention that the Appellant had numerous same and similar convictions in the past, where as in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Principal Magistrate could have further enhanced the sentence. 

18.  In the circumstances, the starting point of 9 months’ imprisonment, which reduced to 6 months upon guilty plea was clearly not manifestly excessive, and it can even be said on the lenient side.

19.  Therefore, the appeal against sentence is also dismissed accordingly.