THE QUEEN v. VY VAN KIEN

Headnote

                 Sentencing - pickpocketing - what is now the normal tariff considered. Previous bad record for similar offences should not be considered as an aggravating factor justifying a sentence beyond what the evidence of the particular offence calls for even in the case of the persistent offender. Factors which are aggravation such as theft on the MTR or other crowded places and planned offences with others are aggravation and should result in sentences above the normal range.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1162 OF 1990

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JUDGMENT

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1. As the relevant facts of each case and the background of the appellants was very similar, with the consent of the Crown and at the request of Mr. Gary Plowman, counsel for both appellants, I heard these appeals together.

2. In the case of Vy Van Kien (M.A.1162/90) the victim, a lady, was walking home in the early evening in Bulkeley Street when the appellant came from behind her and opened the buckle of her handbag which contained $450 plus personal effects. She turned and saw the Appellant looking into her bag and his hand was beneath the flap. The victim shouted and the appellant walked quickly away. However a police constable was in the vicinity and the appellant was arrested. He was charged with attempted theft and at his first appearance in Court Pleaded not guilty. He was granted bail. He failed to appear on the next occasion in answer to bail and a warrant was issued. He was re-arrested and then pleaded guilty.

3. The appellant is single and worked on a construction site. He said he had a sick father, two brothers and a sister to look after. He had three Previous convictions, for theft or attempted theft in January and March 1987 and in July 1988. He was given a suspended sentence of 12 months on the first occasion and 12 months on each of the others. The trial magistrate imposed a sentence of 18 months' imprisonment and in his reasons for sentence said that he took into account his plea of guilty but had to balance that against his appalling record. He also considered that pickpocketing was prevalent in Hong Kong and a substantial sentence was called for.

4. Pham Kau Hoa (M.A.1179/90) was charged with the actual offence of theft and also pleaded guilty. The agreed facts were that a lady, accompanied by her husband, was walking in Chuen Lung Street, Tsuen wan, at 2105 hrs. on the 3rd July 1990. The appellant came from behind the lady, opened her handbag and removed a wallet containing $92 in cash and her I.D. card. However a passing police constable saw what happened, told the lady and her husband and all three set off in Pursuit of the appellant. He was apprehended and the wallet recovered from him. He denied the offence on arrest and pleaded not guilty in Court on several occasions when, having been refused bail, he was remanded for trial. Eventually however, on the 27th of July, he pleaded guilty and was sentenced to 21 months' imprisonment. He has ten previous convictions, all for similar offences, and has been sent to prison for various terms; indeed since 1983 he seems to have spent most of his time in prison. It seems clear that such sentences, the longest being 18 months, have not deterred him in any way. He said he was a drug addict but has no conviction for drug related offences.

5. The trial magistrate said that "taking into account the long and serious record of the defendant, I took as my starting point a period of two years' immediate imprisonment. I could find nothing in the mitigations put forward by the defendant to reduce this period". He did however deduct three months to reflect the plea of guilty, albeit not made at the first opportunity and in the face of strong evidence indeed.

6. The approach taken by the trial magistrate in both of these cases is essentially one of common sense and would probably be regarded by the public as entirely correct. Here we have two men who seem clearly to have become professional pickpockets, particularly Pham Kau Hoa (M.A. 1179). Previous sentences of imprisonment have had no effect and the logical step is to increase the length of sentence, firstly to protect the public and secondly to act as an deterrent, unlikely though that may be.

7. There is, however, clear authority against such an approach, in the absence of clear legislative provision such as is contained in Section 28 of the Powers of Criminal Courts Act 1973 (U.K.) "Powers Relating to Persistent Offenders". If there is no such enactment the law seems clear that previous convictions only mean that the offender is unable to point to a clear record in mitigation. They are not, however, aggravating factors as will justify an increase in the sentence that would otherwise be imposed on the evidence, even if the record is as bad as it is with Pham Kau Hoa. The principle is set out in Thomas' "Principles of Sentencing" 2nd Ed. at p. 41 "A long record of previous convictions will not justify the imposition of a term of imprisonment in excess of the permissible ceiling for the facts of the immediate offence". The writer refers to an unreported decision in Marro where the Court of Appeal said "when there is a man in front of the Court with a dreadful record, it is imperative, if justice is to be done and to be felt to be done, that he should be sentenced not for his record but on the offences which have brought him into Court". In DPP v. Ottewell 1968 52 Crim App. R. 679 where the House of Lords was considering the construction of Section 37(2) of the Criminal Justice Act, Lord Reid cites with approval Reid (1960) Crim. L. R. 276 and Connolly (1959) Crim. L. R. 530 as authority for the view that it is wrong to increase a sentence by reference to offences for which a man had already paid the penalty. See also R. v. Fraser (1982) 4 Crim. App. R. (S) 254.

8. There is Hong Kong authority for the same principle. In R. v. Chan Hon Keung C.A. 218/84 Huggins Ag.C.J. having said "a defendant should not be punished twice for the same offence. It may, on the other hand, be a mitigating factor that a defendant not offended before. A judge should, therefore, be careful to decide first what is the appropriate sentence for the offence with which he has to deal. That 'sentence for the offence' will take into account all the aggravating factors e.g. that a robbery was committed by a person with a gun. That the defendant is a recidivist is not an aggravating factor (Huggins Ag.C.J.'s emphasis). Having decided on the sentence for the offence the judge should then consider what allowance he can properly make for tire mitigating factors, including (if appropriate) that the defendant has a clear record". That sets out admirably the manner in which a defendant's previous record should be taken into consideration.

9. There are a few cases where the Courts do seem to have acted contrary to this principle. Again Thomas refers to Dunn (unreported) when a sentence of five years for making a false bomb alarm was passed on a persistent offender to "keep him out of circulation". That sentence was approved in the Court of Appeal as "a humane and proper course" and that seems to suggest that the offender had a psychiatric problem. There is also some authority for the imposition of an "exemplary sentence" in R. v. Curran 1973 57 Crim. App. R. which seems to approve sentences passed purely to deter others. I am however satisfied that these cases must be rare indeed and wholly exceptional where there is no other way to deal with a major problem.

10. It is also true that apart from deterrence to the offender and others of like mind and the possibility of reform, one factor in imposing a sentence of imprisonment is the removal of the offender away from opportunity of repeating the offence. This may well indeed be a major factor, particularly in sexual offences where the offender is clearly a menace, and will certainly justify a sentence at the top of the range for the particular offence.

11. In considering these particular appeals I have helpfully been referred by Mr. Plowman and Ms. Ravenscroft, counsel for the Crown, to most of the relevant Hong Kong decisions on sentences for this offence beginning with Chan Ki Sai M.A. 236/83, a judgment of Yang J. (as he then was). He held that 9 months was the norm for pickpocketing in a public place (there the racecourse), on a plea of guilty. Mr. Plowman however accepts that the normal sentence has now increased, as is shown by the later authorities, to 12 months, on a plea.

12. In R. V. Hau Tai Wai (M.A. 769/87) the appellant pleaded guilty to one charge. The evidence was strong and the offence was committed on a train at Lowu. The appellant had four previous convictions but had only been to jail once. A sentence of 20 months was reduced to 12, Bewley J. saying he considered a starting point of 15 months was right which he reduced to give effect to the plea. He did not however refer to the offence being committed on a train as an aggravating factor.

13. In R. V. Leung Kim Bor and R. V. Tsang A Sjoe the appellants had 21 and 11 previous convictions and had been sentenced to 21 months and 18 months respectively for single offences. Leung attempted to steal in the MTR while Tsang stole a wallet from a lady's handbag in King's Road. In allowing both appeals Hooper J. went very carefully went into the previous authorities and came to tire conclusion that a sentence of fifteen months' imprisonment was an appropriate starting point, after trial. He round no aggravating factors and, taking into account the plea of guilty, he reduced the sentences to 12 months in each case. He also did hot seem to regard the fact that Leung committed the offence in an MTR station was aggravation.

14. In R. v. Trinh Quang Hung M.A. 1012/89 Boknary J. again reviewed the authorities, which it had been suggested to him were confused. He did not agree and found that the tariff on conviction after trial ranges from nine to fifteen months. He went on: "There are instances in which one finds elements of aggravation making a sentence beyond fifteen months' imprisonment appropriate. I can think of a number of examples: if a pickpocket were to wait outside a factory on pay day in order to relieve some unfortunate factory worker of his entire pay packet, upon which his family is dependent ..... Likewise, if a pickpocket were to wait at a train station to relieve someone obviously on his way to visit his family in China of all his money intended for the trip, a sentence beyond fifteen months' imprisonment may well be appropriate."

15. I entirely agree and consider that in pickpocketing in situations where the public is particularly vulnerable such as oh trains and other forms of public transport, or in a crowd at the races or other places of entertainment, there is an aggravating factor. However in reducing the sentence from two years to 15 months Bokhary J. said that as there was ho such aggravation the tariff sentence of 15 months was appropriate. However he went on to say that the mitigation of the plea of guilty was cancelled by the bad record of similar convictions. With respect that seems to be contrary to the authorities which I have already quoted.

16. In September 1989 Barnes J. considered pickpocketing sentences in R. v. Lee Kwok Leung M.A. 926/89. This again was a straigntforward case of theft in the street. There was a plea of guilty and a bad record (nine previous offences). Barnes J. was referred to the previous decisions by Mr. Plowman, who was also counsel in that case, and Crown counsel conceded that, on a plea, the proper sentence should nave been one of 12 months. The appeal was allowed on that basis.

17. The final two decisions to which I have been referred are both those of Duffy J. In R. v. Kong Sze Kan M.A. 1230/89, a case of pickpocketing at Lowu station, the defendant had a very bad list of previous convictions and, as Duffy J. said, nothing had persuaded him to change his ways - even his failure to become a competent pickpocket. He referred to the decisions of Barnes J. and Bokhary J. and took the view that in view of the growing incidence of this offence at such places as Lowu station and the defendant's appalling record the sentence of 18 months was not excessive and dismissed the appeal. He does not record whether this was on a plea or after trial.

18. In R. V. Vu Dinh Ly and Nguyen The Cuong M.A. 108/90 the defendants were sentenced after trial to 15 months and 12 months respectively, the longer sentence being because of one previous conviction. There were no aggravating factors and the judge, while commenting on the increased incidence of this offence, clearly did take into account the frustrating conditions of camp life endured by the defendants by reducing the sentences to 12 months and 9 months. It is however somewhat difficult to reconcile that with his previous decision. He said that he understood "feelings of frustration in these circumstances leading to offences of violence, but not to pickpocketing expeditions". I certainly agree with that observation.

19. Each case must always be treated on its own facts and the circumstances of each offence and offender will always vary. However from a consideration of the relevant authorities it has been accepted that pickpocketing has become prevalent in Hong Kong and, if a sentence of imprisonment is called for, a starting point of 12-15 months after trial is correct. This should we increased if there are aggravating factors such as the use of a weapon, like a razor-blade, or if the offence is committed in a place where the public, though no fault of its own, is at risk. This would include all rorms of public transport and such crowded places as the race courses. Another aggravating factor which would certainly call for a substantial increase in sentence would be evidence that the offender was acting in concert with others in a well organised gang operation. An offender's record in itself is not, however an aggravating factor justifying an increase in sentence beyond what the facts of the particular case requires. A very bad record may well suggest the desirability of a preventive sentence out if that is required it is for the legislature to introduce a provision to allow for it, perhaps along the lines of Section 28 of the Powers of Criminal Courts Act 1973.

20. A plea of guilty will almost always result in some reduction of sentence and it is very helpful if the actual amount of that discount is stated. The discount will vary depending on the strength of the evidence and the time when it was offered. A long record of previous offences may well snow that genuine remorse was not a reason for the plea and the only reason for a reduction is the saving of court time and public expense. These are, however, essentially matters for the sentencing magistrate to consider.

21. There are two factors which with this type of offence seem to me to he irrelevant to sentence. One is whether there was an attempt, as against the actual offence. Clearly this has in the past made no difference to sentence and quite rightly so. The other factor is the amount stolen. The pickpocket is after whatever is in a particular bag or pocket and the amount he finds does not reflect his criminality. The only exception I can think of is the rare care of a carefully planned pre-meditated offence such as Bokhary J. referred to in Trinh Quang Hung.

22. In the present instances bearing these principles in mind, while I have every sympathy for the approach taken by the trial magistrates who have to deal with these offences committed by persons who clearly are professional thieves, I am satisfied that the sentences are too high. Clearly the offenders' records have been taken to aggravate the offence beyond what the facts of each case disclose.

23. In M.A. 1162/90 Vy Van Kien the appellant was alone, he used no weapon and there were no other aggravating factors. He has a bad record, thougn I would not have thought "appalling". He pleaded not guilty on his first appearance and only changed that after a warrant for his arrest was issued. The evidence against him was very strong. I consider a starting point of 15 months would have been correct less a deduction of two months for his plea. The appeal is allowed and a sentence of 13 months substituted for the original term of 18 months.

24. In M.A.1179/90 Pham Kau Hoa again none of the aggravating features I have mentioned was present and a starting point or 15 months was correct. He pleaded guilty but only after four earlier appearances when the offence was denied. Because of this two prosecution witnesses were in Court ready to give evidence when the plea of guilty was finally made. In view of that and his record, which clearly negatives any genuine regret, only a very small allowance should have been made for the plea.

25. The appeal is allowed and the sentence reduced from 21 to 14 months' imprisonment.