HKSAR v. AU KIN WAH

CACC 68/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 68 OF 2012

(ON APPEAL FROM DCCC NO. 1238 OF 2011)

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JUDGMENT

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1. The Applicant is a pickpocket. He was charged with one count of theft and 3 counts of attempted theft. He pleaded guilty to the theft as well as two counts of attempted theft and not guilty to the 4^th count.

2. The 4^th charge was left on the court file and not to be proceeded with without the leave of the court.

3. On 15 February 2012, he was sentenced by Deputy District Judge Woo (as she then was) to 18 months’ imprisonment for charges 1 and 3 and 16 months’ imprisonment for charge 2.  The Deputy Judge further ordered that the sentences for charges 2 and 3 should run concurrently but that 9 months’ of the first charge should run consecutively with the sentences of the other two charges.  The total sentence is 27 months.

4. The applicant now applies for leave to appeal against sentence.  He makes two main points : the first, he made in the papers, namely that the offences were not committed in a crowded place such as the racecourse or the MTR; the second main point is that in sentencing him to, for example, 18 months imprisonment the learned judge had adopted a starting point of 27 months.  He complained of the enhancement of his sentence to 27 months because of his record, he has a total of 29 previous convictions many of them concern pick pocketing, for the last of which, on 18 June 2010 he was sentenced to imprisonment for 1 year and 4 months.  Looking at the sentences individually, one might say that they were on the high side but what we have considered today is the total sentence of 27 months.

5. The first charge of theft was committed at about 6:00 pm on 30 September 2011 outside a supermarket in Sham Shui Po.  The applicant bumped the 62 years old victim from behind and stole his wallet, which contained $200.

6. The second and third charges were both committed on 6 October 2011 but at different time and at hawker stalls No. 22 and 31 respectively at Kweilin Street.  The second charge involved a middle age woman and the third charge involved an elderly woman. 

7. The Learned Judge took the view that the offences were committed in a crowded shopping hawking area in Sham Shui Po.  And we see no reason to disagree with that view.  She also took the view having regard to the applicant’s records, he had 29 previous convictions, 22 of which were of a similar nature and it appeared that he committed the present offences just 6 months’ after his release from prison for his last theft conviction.  As I have said one might consider the sentences individually to be on the high side but what we have to consider is the total sentence of 27 months.  Given that the offences all took place at different time, the learned judge might have ordered more of the sentences to be served consecutively.  In all the circumstance, we do not regard the total sentence of 27 months as manifestly excessive.  Therefore, we refuse leave to appeal against sentence.