HKSAR v. SUEN PING

CACC 217/2023 [2024] HKCA 701

On appeal from [2023] HKDC 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 217 OF 2023

(ON APPEAL FROM DCCC NO 680 OF 2023)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court)

1.  On 22 November 2023, following the appellant’s conviction on his own plea of two charges of theft (pickpocketing)[1] before District Court Judge E Lin (the judge), he was sentenced to a total of 33 months’ imprisonment.

2.  On 1 December 2023, the appellant applied for leave to appeal against his sentence.  He filed perfected grounds of appeal on 18 April 2024 and applied for bail pending appeal, which was heard on 10 July 2024.  By agreement of the parties, the Single Judge in addition to the bail application also heard the leave application.  The appellant was granted leave to appeal against his sentence by the Single Judge on the main ground that the judge’s sentencing approach was wrong in principle and the sentence was manifestly excessive.  The appellant was refused bail, but the Single Judge ordered an expedited hearing of his appeal against sentence.[2] 

The summary of facts

3.  The first charge occurred on the afternoon of 24 January 2023, when the appellant having seen a female shopper at a vegetable store using her mobile telephone before putting it in her pocket, stole the mobile telephone together with the other contents of her pocket, consisting of an octopus card and a credit card.  The incident was captured on CCTV footage (Charge 1). 

4.  The second charge occurred in the afternoon of 19 March 2023 when the appellant stole a mobile telephone and a telephone case from the open bag of a female shopper at a wet market.  The appellant fled but was apprehended, and the shopper’s property was found in his possession.  When the appellant committed the second charge, he was on bail for the first charge, which was granted on 25 February 2023 in the High Court, after he had been refused bail upon his arrest for the first charge on 30 January 2023 (Charge 2).

The reasons for sentence

5.  The judge referred to the sentencing guidelines for pickpocketing in HKSAR v Ngo Van Huy [3], which provided a guideline sentence of 12 to 15 months’ imprisonment after trial for a first-time offender.  He noted that the appellant had committed the first offence shortly after he had been released from prison, having served a sentence of 16 months’ imprisonment following his conviction for pickpocketing on 9 August 2022.  He adopted a starting point of 32 months’ imprisonment for both charges, which he discounted by one third to 21 months’ imprisonment for the appellant’s guilty plea.  The judge then enhanced the discounted sentence by 12 months to 33 months’ imprisonment for four aggravating factors, imposing three months for each factor, namely: (1) the appellant was a repeat offender (he was 65 years of age with 74 prior convictions, half of which were dishonesty related); (2) the offences were committed in a crowded place; (3) the second offence was committed shortly after he had been granted bail; and (4) the offences were committed within a very short period. 

The issues on appeal

6.  By his grounds of appeal, the appellant complains that the judge adopted an exceptionally high starting point of 32 months’ imprisonment which was outside the usual range of 12 to 15 months (Ground 1); the judge reduced the one third discount for the guilty plea from the initial starting point but then added 12 months for the aggravating factors, when he should have reduced the one third discount after adding up the enhancements of the aggravating factors to the initial starting point (Ground 2); and the resultant sentence of 33 months’ imprisonment was manifestly excessive and represented a starting point of about 50 months’ imprisonment after trial (Ground 3).

7.  The respondent acknowledges that the judge’s sentencing process may have miscarried but ultimately contends that the sentence was appropriate.

Discussion

8.  The judge took a global approach when sentencing the appellant for the two theft charges instead of passing a sentence for each offence and then making the sentences partly consecutive and/or partly concurrent in order to arrive at a just and appropriate overall sentence for the appellant’s criminality.  The two charges, whilst involving the same offence, revealed a different level of culpability: in particular, Charge 2 was committed by the appellant whilst on High Court bail for Charge 1 and a matter of weeks after its commission.  This required a particular emphasis on personal deterrence and the importance of observing court orders[4].  It is a factor that seriously aggravates the offence.  Accordingly, Charge 2 would have merited a higher sentence than Charge 1, part of which ought to have been ordered to run consecutively to the sentence for Charge 1, the remaining part concurrently. 

9.  The correct approach for determining the appropriate and just sentence for multiple offences involves adopting a starting point, taking into account the accused’s role and culpability; enhancing the starting point for any aggravating factors, bearing in mind the totality of the additional enhancements, reducing the notional starting point for mitigating factors, including a discount for a guilty plea; and applying the totality principle for the multiple offences by ordering the sentences to be served consecutively or concurrently in arriving at an overall sentence that reflects the true criminality of an accused. 

10.  In Ngo Van Huy it was said that theft by pickpocketing is a type of offence that society severely and rightly condemns and provided the following guidelines and principles when sentencing an offender:

“(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 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:

(a) The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim): see R v Vy Van Kien & Another [1991] 1 HKLR 422.

(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) If the accused commits the offence in conjunction with another, the sentence should be higher. Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for: see HKSAR v Rang Zhi Tai & Another (unrep., HCMA No 7 of 1999, [1999] HKEC 1062), Court of First Instance; HKSAR v Ho Minh Cong (unrep., HCMA No 547 of 1999), Court of First Instance. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed: see HKSAR v Ho Minh Cong, (unrep., HCMA No 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 (unrep., HCMA No 589 of 1996, [1996] HKLY 613), Court of First Instance; HKSAR v Huynh Van Dung (unrep., HCMA No 270 of 2001, [2001] HKEC 891), Court of First Instance.

(5) We should just elaborate on the aspect of an accused's previous convictions as being an aggravating feature. It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences. The passage of the judgment of Penlington JA in R v Vy Van Kien & Another [1991] 1 HKLR 422 at p.427C-D provides an example of this. Rather, the accused would simply not receive any discount from which a person of clear record might benefit. This has now changed. Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person's previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him: see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at pp.833-834. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence: see HKSAR v Chan Pui Chi at p.833F-I, referring to R v Billam & Others (1986) 82 Cr App R 347.

(6) Where, such as in the present case, an application is made to enhance the sentence under s.27 of the OSCO by reason of the increased prevalence of the crime of theft by pickpocketing, it will, where the prevalence is proved, be appropriate for the court to enhance sentence. As we have observed above, this particular form of theft can properly be regarded as a serious offence and as a matter of public policy, a meaningful and deterrent sentence should be imposed. Where it has become increasingly prevalent, an enhancement of the sentence is therefore entirely appropriate. In this particular case, the figures we have seen show an alarming increase. The Judge ordered an enhancement of 25% (no doubt as this was the figure suggested by Government Counsel who appeared before him), but the figures available to us indicate that a greater increase is justified. In our view, enhancing the sentence by 1/3 would be appropriate.”

11.  When sentencing an offender for pickpocketing a guideline sentence of 12 to 15 months’ imprisonment after trial is appropriate for a first-time offender.  It follows that a sentencing court has a discretion beyond this range if it is not the offender’s first time, although the starting point adopted will depend on the facts and circumstances of the case.  However, when the court is dealing with an offender who is to receive an enhancement for the aggravating factor of being a repeat and persistent offender, it is appropriate to adopt as a base starting point 15 months’ imprisonment.  This will ensure a sentencing court does not double count when dealing with a recidivist.

12.  At the time of sentencing, the appellant was 65 years of age.  He was divorced and lived in a public housing unit.  He had 74 prior convictions from July 1981 to August 2022, including 22 for theft and 14 for pickpocketing, for which he received varying terms of imprisonment.  During this period, he had also been convicted of an array of serious offences, including trafficking in a dangerous drug, for which he received 7 years’ imprisonment in June 2014.  The last conviction he received was for pickpocketing, for which he was sentenced to 16 months’ imprisonment on 9 August 2022.  It therefore meant that soon after he was released from prison, having served that sentence, he committed the offence in Charge 1 on 24 January 2023.

13.  Against this appalling criminal record, we can understand why the judge substantially enhanced the appellant’s sentence.  He is a serious recidivist, who has constantly flouted the law, undeterred by the terms of imprisonment he has received for the numerous offences of theft or pickpocketing over a period of 40 years.  It needs to be understood that a repeat and persistent offender is a serious aggravating factor that warrants a deterrent sentence to make him realise the seriousness of his wrongdoing and protect society from habitual criminals like him.  It is not uncommon for a repeat offender of the offence of pickpocketing to have the base starting point of 15 months’ imprisonment increased by 9 to 12 months or possibly more, depending on the circumstances: Ngo Van Huy [5]; HKSAR v Tsui Chiu Kwai [6]. Quite separately, where an accused reoffends within a short period of time or soon after being released from prison for the offence of pickpocketing that would independently justify an enhancement to the sentence to that for being a repeat and persistent offender: Tsui Chiu Kwai [7].

14.  Other matters that are relevant when determining an appropriate sentence include the nature and value of the property stolen, the age or vulnerability of the victim, the circumstances in which the theft has taken place, and the organisation and planning involved in the theft.[8] 

15.  The Court in Ngo Van Huy [9] held that where the offence is committed at a place in which the public is at particular risk, such as a crowded place, this is an aggravating factor. 

16.  The Court in HKSAR v Liu Lin Feng [10] held that the stealing of a mobile telephone would cause the owner a high degree of distress and inconvenience because of the large amounts of data of importance to the owner. Although, we would add that a mobile telephone has become an indispensable part of a person’s everyday life, which also provides an essential means of communication and a variety of important functions.  We think the time has come to acknowledge the importance in a person’s life of a mobile telephone and the acute inconvenience and harm that is caused to a person whose mobile telephone is stolen.  The theft of a mobile telephone has also been acknowledged to be an aggravating factor in the United Kingdom in sentencing for cases of theft and robbery.  See R v Simmonds [11].

17.  It is relevant to refer to Sham Wing Kan v Commissioner of Police [12], where the Court of Appeal, when addressing search warrants in respect of mobile telephones and similar electronic devices, said that the technological advancement of mobile communications and computer technology made mobile telephones “ubiquitous and intelligent”,[13] and went on to say:

“113. We no longer use mobile phones simply as telephones. We regularly use them to conduct many aspects of our daily life. We use them as instantaneous communication tools, cameras, voice or video recorders and players, calendars, diaries, albums, televisions, maps or newspapers. We use them for emails, social media, the internet, millions of apps covering all aspects of our life. …”

In this context, the Court explained that in terms of privacy interest, three important characteristics arising from the use of a mobile phone distinguish it from other objects that might be kept on an person: “(1) the vast amount and unique nature of the personal information stored in it; (2) storage of such information on “cloud” accessible by the mobile phone; and (3) the portability and accessibility of such information.”[14] The Court also explained the amount and nature of personal information and the “cloud” storage and technology:

“115. The regular use of a mobile phone as a multifunctional minicomputer to conduct one’s daily life generates a wealth of information about the intimate details of the user, including the user’s interests, habits, identity, familial, political, professional, religious and even sexual associations without the knowledge or intent of the user. It is also a special repository of such personal data. See Fearon, per Cromwell J at [51], and Riley, per Chief Justice Roberts at p.2490. As Karakatsanis J in Fearon, at [101] put it:

[mobile phones] record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. [They] are windows to our inner private lives.

116. In short, a mobile phone is capable of providing a very detailed an d accurate profile of its user. The privacy interest involved in a search of the contents of an arrestee’s mobile phone would necessarily go beyond the ordinary level of privacy that would be intruded upon in a traditional search of things found on his person on arrest.

…

117. The data that a user views on his mobile phone may not in fact be stored on the device itself. The data may in fact be stored on a remote server known commonly as ‘cloud’ and the user views it by using the ‘cloud computing’ technology. In simple terms, ‘cloud computing’ enables internet-connected devices, mobile phones included, to access and display data stored on remote servers rather than on the device itself. In tapping the information stored on the ‘cloud’, mobile phones function not as a storage but as a key to the remote server. That means that the mobile phone enables access to additional personal information of its user not already stored on the device. It adds an additional dimension to the privacy interest involved in a search of the contents of the mobile phone. The scope of the privacy interest at stake may become wider than what is already stored on the mobile phone.”

18.  The theft of a mobile telephone is an aggravating factor because of the harm done to the victim due to the loss of personal and vital data and information and the denial to perform important functions and activities.  However, the retention or recovery of the mobile telephone will be a relevant consideration when imposing an enhancement to the sentence of the offender for this aggravating factor.

19.  The proposition that a person whose mobile telephone is stolen, will usually ameliorate the loss by a backup programme does not take into account the loss of a myriad of functions, and the affront to and invasion of privacy.

The correct sentence

20.  The judge’s method of adopting a starting point, which he discounted by one third for the appellant’s guilty plea, before adding the enhancements for the aggravating factors was wrong in principle.  What he should have done was to add the enhancements to the initial starting point, arrive at a notional sentence after trial, and then discount the notional sentence after trial for a guilty plea or any other mitigating factors. The sequence is important, and the accused should receive the benefit of a lesser sentence as dictated by the sentencing guidelines and principles.  The judge also erred in not sentencing the two offences separately and then assessing the totality to determine a just and appropriate sentence.  However, fortuitously, the sentence the judge imposed was right but his method was wrong.

21.  We would sentence the appellant as follows.  For Charge 1, we would adopt a base starting point of 15 months’ imprisonment.  We would give the following enhancements for the aggravating factors of 12 months for the appellant’s recidivism; 3 months for committing the offence in a crowded place; and 3 months for stealing a person’s mobile telephone.  Applying the totality principle, we would reduce the total enhancements of 18 months to 15 months.  After reducing the notional sentence after trial of 30 months’ imprisonment by one third for the appellant’s guilty plea, we would sentence the appellant to 20 months’ imprisonment on Charge 1.

22.  For Charge 2, we would adopt a base starting point of 15 months’ imprisonment.  We would give the following enhancements for the aggravating factors of 12 months for the appellant’s recidivism; 4 months for committing the offence while on High Court bail; 3 months for committing the offence in a crowded place; and 2 months for committing the offence soon after Charge 1.  We did not give any enhancement for the theft of the mobile telephone because it had been recovered immediately after it was stolen.  Applying the totality principle, we would reduce the total enhancements of 21 months to 18 months.  After reducing the notional sentence after trial of 33 months’ imprisonment by one third for the appellant’s guilty plea we would sentence the appellant to 22 months’ imprisonment on Charge 2.

23.  The combined sentences of Charges 1 and 2 is 42 months’ imprisonment, and applying the totality principle, we would sentence the appellant to 33 months’ imprisonment.  We would order that 13 months of the sentence of Charge 2 to run consecutively to the sentence of 20 months’ imprisonment on Charge 1,with the remaining part to run concurrently.

Conclusion

24.  For the reasons we have given, the sentence was wrong in principle and we allow the appeal.  We would not disturb the resultant sentence of 33 months’ imprisonment, which we have arrived at by a different route to the judge, as dictated by sentencing principles and practice. 

[1]  Contrary to section 9 of the Theft Ordinance (Cap 210).

[2]  HKSAR v Suen Ping, CACC 217/2023, 10 July 2024, [2024]HKCA 630, per Zervos JA.

[3]  HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.

[4]  HKSAR v Leung Ting Fung & Anor. [2015] 1 HKC 290, at [24].

[5]  Ngo Van Huy, at [9(5)].

[6]  HKSAR v Tsui Chiu Kwai, unrep., CACC 452/2011, 25 May 2012, at [24].

[7]  Tsui Chiu Kwai, at [24].

[8]  See Ngo Van Huy, at [9]; HKSAR v Chiu Suet Yee, Angel, unrep., CACC 105/2010, 27 October 2010.  See also Cross and Cheung, Sentencing in Hong Kong, Eleventh Edition, Chapter [1-103]-[1-105].

[9]  Ngo Van Huy, at [9(4)(b)].

[10]  HKSAR v Liu Lin Feng, unrep., CACC 206/2011, 28 February 2012, at [36].

[11]  R v Simmonds [2024] 1 Cr App R (S) 22, 206, at [25].

[12]  Sham Win Kan v Commissioner of Police [2020] 2 HKLRD 529 (Poon CJHC, Lam and Macrae VPP).

[13]  Ibid., at [112].

[14]  Ibid., at [114].