CACC 381/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 381 OF 2013
(ON APPEAL FROM DCCC NO. 757 OF 2013)
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BETWEEN
HKSAR
Respondent
and
Wu Tak Chau (胡德就)
Applicant
____________
Before: Hon Lunn VP, Poon and D. Pang JJ in Court
Date of Hearing : 16 July 2014
Date of Judgment : 16 July 2014
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Hon Lunn VP (giving the Judgment of the Court) :
1. By a notice filed with the court on 7 March 2014 the applicant, who appears in person, renewed his application for leave to appeal against his conviction after trial by District Court Judge Browne on 16 October 2013 for the theft of a mobile phone on 13 June 2013 from a man on an escalator at the Kowloon MTR Station and against the sentence of 30 months’ imprisonment imposed in consequence. The applicant’s application for leave to appeal against conviction and sentence was refused by the single judge, Lunn JA, on 27 February 2014.
The Trial
2. The applicant was charged jointly with Yu Sik Fun (“the 1st defendant”). Although the 1st defendant pleaded guilty to the charge of theft he contested the factual basis of the offence and the judge conducted a Newton hearing as part of the trial of the applicant.
The prosecution case
3. Sgt 54995, Yu Kin Shing, testified that on the afternoon of 13 June 2013 he was on plainclothes duty on the lookout for pickpockets in the MTR system. He gave evidence in the prosecution case of his surveillance of the two defendants at trial leading up to him following them as they in turn followed a traveller up the escalator. He said that he had seen them talking to one another and watching a man as he opened his suitcase and repacked it. Finding that suspicious, he maintained his surveillance on them.
4. Sgt 54995 said that he saw the 1st defendant gesturing to the applicant, pointing his finger in the direction of a man whom they then followed. In response, the applicant nodded his head. Sgt 54995 said that he was about 10 metres behind the others on the escalator. He saw the 1st defendant unzip the outer pocket of the pull-along travelling bag, which the traveller had placed on its wheels on the step behind him, and remove a mobile telephone. Then, he transferred it to his left hand and passed to the applicant, who stood on the step behind him. He moved forward and grabbed hold of both men and saw the telephone thrown from the grasp of the applicant onto the steps of the escalator. He shouted out: “Police! You two were stealing!”
5. The two men struggled and they all fell on to the steps of the escalator. A passerby came to his assistance and placed his hands on the 1st defendant’s shoulders. Sgt 54995 said that in the course of subduing the two men he had been injured and, after receiving treatment at hospital, he had been granted five days’ sick leave.
6. In cross-examination, Sgt 54995 reaffirmed his evidence that he had seen the two men talking to one another and the 1st defendant gesturing to the applicant before the two of them followed the traveller. However, he accepted that he did not record that in his notebook or his witness statement of those events. Although it was accepted in cross-examination that the 1st defendant had stolen the telephone from a pocket in the travelling bag, it was asserted that he did so as it protruded from the bag. It was denied that he had unzipped the bag and passed the telephone to the applicant. Rather, he had dropped it when the police officer pounced upon him. Then, it was suggested that Sgt 54995 had not shouted out, “Police! You two were stealing.” Sgt 54995 denied those various suggestions put in cross-examination on behalf of the 1st defendant.
7. In cross-examination by counsel for the applicant the Sergeant reaffirmed his evidence.
The defence case
8. The 1st defendant testified in the Newton hearing in accordance with the case that had been put in cross-examination to Sgt 54995. In cross-examination by counsel for the applicant, he testified that, having been arrested and cautioned, he had admitted stealing the telephone but had asserted “My friend Wu Tak Chau has nothing to do with it.” He said that was the truth.
9. The 1st defendant said that he had known the applicant for 10 years. Earlier that day, at his instigation, they had arranged by telephone to meet outside the 7-11 shop at the Kowloon MTR station, so that they could go to China Travel Agency to make enquiries about travelling to the Mainland by bus. He said that they wished to go there to sell parallel goods. Having met up they had conversed for about 10 minutes before he left. In doing so he noticed the traveller and took advantage of the opportunity presented to him to steal.
10. The applicant did not testify in the defence case.
Reasons for verdict
11. The judge made his determination in the Newton hearing together with his findings in respect of the applicant in his Reasons for Verdict. He rejected the 1st defendant’s evidence as to the circumstances in which he claimed he met the applicant. He accepted the evidence of the Sergeant that the two men had been behaving suspiciously, watching the luggage of travellers. He found that the two men were at the MTR station “looking for opportunities to steal” and were acting in concert. He rejected the 1st defendant’s evidence that the telephone was protruding from the pocket of the travelling bag. Rather, he accepted the evidence of the Sergeant that the 1st defendant had manoeuvred his hand in a way that suggested that he was unzipping the travel bag, after which he stole the telephone and handed it to the applicant.
12. Accordingly, the judge found that the applicant guilty of theft.
Reasons for sentence
13. The judge noted that the applicant was aged 59 years and had been convicted on seven occasions, the majority in respect of offences related to theft.
Starting point for sentence
14. In determining the appropriate starting point to be taken for sentence the judge acknowledged that no implements had been used in the commission of the offence and that no identity documents have been stolen.[1] Nevertheless, the judge determined that the applicant and the 1st defendant were at the MTR station “deliberately looking for opportunities to steal property”. The judge noted that the “usual sentence” for an offence committed in those circumstances, namely “theft in a crowded place by two men acting in concert, with poor records” was 30 months’ imprisonment.
15. Having noted that theft from visitors to Hong Kong caused enormous problems to those visitors, the judge determined that a deterrent sentence was required. Further, he noted that the officer had put himself at risk in arresting two men and had been injured.
Sentence
16. There being no basis to discount the starting point for sentence in respect of the applicant, the judge sentenced him to 30 months’ imprisonment.
The applicant’s grounds of appeal against conviction
3 March 2014
17. In a document, dated 3 March 2014, attached to the notice of renewal of the application for leave to appeal against conviction and sentence the applicant asserted that the evidence of the prosecution witnesses was “directed and fabricated by Sgt 54995, Yu Kin Shing”. Also, he asserted that he and the 1st defendant were “target persons”, known to Sgt 54995 by name.
Attachment to Form XI: 12 November 2013
18. In addition, the applicant relied on grounds of appeal set out in an attachment to Form XI, filed with the Court on 12 November 2013, by which the applicant gave notice of his applications for leave to appeal against conviction and sentence. The applicant asserted that he did not receive a fair trial because of the speed at which the trial proceeded and because the judge stopped counsel representing him “before he could put any question to witnesses”.
Documents dated 12 February 2014 but received by the court in March 2014
19. Finally, the applicant relied on grounds of appeal set out in a 13 page submission dated 12 February 2014, but filed with the Court in March 2014. There, he raised multiple complaints in respect of the reliability of the evidence adduced by the prosecution at trial, including: the identity of the owner of the mobile telephone was never established; given that Sgt 54995 was operating with other team members on the day of the alleged theft, it was not credible that he would have arrested the applicant and the 1st defendant alone; and the applicant and the 1st defendant did not struggle in the course of being arrested. The applicant informed the court that he had no oral submissions to make in support of those grounds.
The applicant’s grounds of appeal against sentence
20. The applicant advanced no written or oral grounds of appeal in respect of sentence.
A CONSIDERATION OF THE SUBMISSIONS
An unfair trial: curtailed cross-examination
21. The Court has the advantage of the transcript of all the oral evidence adduced at trial. Only Sgt 54995 and the 1st defendant gave oral evidence. Their testimony occupied the whole of the first day of trial and about 20 minutes of the second day. It is perfectly apparent from the transcript that Mr Kenney Chan, counsel for the applicant, cross-examined Sgt 54995 at some length, the transcript occupying eight pages. At the end of his evidence in chief a CCTV film of the place at which the theft occurred was shown in open court.[2] In cross-examination counsel for the applicant suggested that the CCTV film did not depict a “struggle of D1 and D2”. That caused a judicial intervention, in which the judge took issue with the proposition observing that it was obvious that there was a commotion going on but that it was difficult to see what is going on. Nevertheless, at the request of counsel the CCTV film depicting the top of the escalator at the material time was replayed and further cross-examination on the issue ensued. At the direction of this Court the CCTV film was played twice at the hearing of the application. It was clear that there was force in the judge’s observations.
The identity of the owner of the mobile phone
22. The fact that Sgt 54995 had not been able to establish the ownership of the mobile phone was established at trial in cross-examination of that officer.[3]
Evidence of a struggle
23. The issue of whether or not there was a struggle between the applicant and the 1st defendant on the one hand and Sgt 54995 on the other hand was canvassed at trial. Sgt 54995 disagreed with the suggestion that there was no struggle.[4]
Available police assistance for Sgt 54995
24. The issue of the availability of other police officers to assist Sgt 54995 was dealt with in his evidence at trial. He said that he was one of a number of plainclothes officers on patrol in plainclothes in the MTR that evening. He alerted his colleagues requesting assistance when his suspicions as to the conduct of the applicant and the 1st defendant were confirmed.[5]
Conclusion
25. There is absolutely no merit in the applicant’s complaint that his counsel was prevented from pursuing appropriate cross-examination, so that in the result he was denied a fair trial. Equally, there is no merit in the suggestion that the trial proceeded at an unfair speed. Similarly, there is no merit in any of the other complaints that the applicant has raised. Accordingly, the applicant’s renewed application for leave to appeal against conviction is dismissed.
SENTENCE
Starting point for sentence
26. In the judgment of Ma CJ HC, as he was then, in HKSAR v Ngo Van Huy [6] this court gave guidelines in respect of sentencing for offences of pickpocketing:
“ (1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case (ease?) with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.
(2) The guideline sentence of 12‑15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.
(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.
(4) Aggravating features include : ‑
(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.
(c) ..................................................... See HKSAR v Ho Minh Cong (unrep., HCMA 547 of 1999)
In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :
“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment”.
(d) Where the accused is a repeat offender or, worse still, a persistent one : ‑ see R v Chiang Pok Wing , unreported, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung , unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.” [Emphasis added.]
27. The applicant has multiple convictions for theft and attempted theft. In 2003, the sentence of imprisonment imposed on him for attempted pickpocketing was reduced on appeal to 13 months’ imprisonment. In 2005, the sentence imposed upon him the previous year for conspiracy to steal was reduced on appeal to 42 months’ imprisonment.
28. The judge was entitled to have regard to the various factors that he enumerated as exacerbating the commission of this offence and was correct to stipulate a starting point for sentence of 30 months’ imprisonment.
Conclusion
29. There is no merit in the applicant’s renewed application for leave to appeal against the sentence of 30 months’ imprisonment imposed upon him after trial, which application is dismissed.
‘Loss of time’
30. Having dismissed the applicant’s renewed applications for leave to appeal against conviction and sentence we invited him to addresses us to why we should not exercise our power, pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221 to make a ‘loss of time’ order. The applicant submitted that although he had sent the 13 page submission dated 12 February 2014 to the Court in advance of the hearing before the single judge it had been returned to him marked as having ‘insufficient postage’ the day before that hearing, namely 27 February 2014. Given that the submission was voluminous and entirely in Chinese he felt unable to produce to the Court at the hearing. However, he had re-sent the submission to the Court in March 2014 after he had renewed his application for leave to appeal against sentence.
31. In all those circumstances, we are satisfied that it is not appropriate to make any such order.
(MICHAEL LUNN)
(J. POON)
(DEREK PANG)
Vice-President
Judge of the Court of
Judge of the Court of
First Instance
First Instance
Ms Audrey Parwani, SPP(Ag), of the Department of Justice, for the respondent
Applicant appeared in person
[1] Appeal Bundle, page 16 M-O.
[2] Appeal Bundle, page 42.
[3] Appeal Bundle, pages 57-8.
[4] Appeal Bundle, page 54 P-Q.
[5] Appeal Bundle, page 30 P.
[6] HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, at pages 7 E - 9 D, paragraph 9.