HKSAR v. CHENG WAI LEUNG

CACC 358/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 358 OF 2016

(ON APPEAL FROM DCCC 474 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. The charge alleged that he, together with Lam Mei Yi, on 9 April 2016 at No 33 Kwong Wa Street, Mongkok, Kowloon, in Hong Kong, stole one smartphone, the property of Cheung Suk Chu Daisy.

2.  On 2 November 2016 the applicant and Lam appeared before District Judge Woodcock (“the judge”) and the applicant pleaded guilty to this charge.  Upon him doing so the prosecution offered no evidence against Lam.  On the same day the judge sentenced the applicant to 20 months’ imprisonment.  The applicant now applies for leave to appeal against that sentence. 

3.  At the hearing of the application I refused it and said I would give my reasons for doing so at a later date.  This I now do.

The background to the offence

4.  The applicant and a woman named Lam Mei Yi (“Lam”) were observed by an off-duty police officer to be behaving suspiciously outside a McDonalds restaurant in Waterloo Street, Mongkok. The off-duty police officer requested assistance and whilst waiting for other officers to arrive kept the applicant and Lam under observation.  This officer saw the applicant and Lam follow a woman from the McDonalds restaurant to a pedestrian crossing at the junction of Yim Po Fong Street and Kwong Wah Street.  The woman waited at the crossing and while she was there the applicant and Lam approached her from behind.  Lam held out her left hand and pointed at the woman’s right jacket pocket.  The applicant then reached his hand into the woman’s right jacket pocket and removed from it an iPhone which he immediately passed to Lam.

5.  The applicant and Lam then turned left into Soy Street and walked quickly towards the direction of Sai Yee Street.  The off-duty police officer alerted other officers to intercept the applicant and Lam and when they did so Lam threw the stolen iPhone onto the ground.  The applicant and Lam were thereupon arrested for the offence of theft.  Under caution the applicant admitted that he stole the female victim’s phone and explained that he did so because he was in financial difficulties.  The theft by pickpocketing was captured by CCTV cameras near the scene.  The CCTV footage from these cameras showed the applicant and Lam with the applicant placing his right hand into the pocket of the victim’s jacket while walking along the pavement shortly after having crossed at the pedestrian crossing.

The mitigation

6.  Counsel for the applicant informed the court that the applicant was 54 years of age and married with four children, all of whom were attending school.  He said the applicant was the recipient of comprehensive social security assistance amounting to $10,000 per month.  It was admitted that the applicant had 8 previous convictions of a similar nature and had committed his first offence at the age of 23.

7.  The applicant’s counsel submitted that the crime did not involve a lot of activity in preparation for it and was committed in a moment of weakness.  His counsel also submitted that although the crime scene was not a quiet location it could not be described as a busy one. 

8.  The applicant’s counsel realistically recognized that the only mitigating factor was the applicant’s plea of guilty.  He invited the judge to adopt the lowest starting point and award the applicant a full one-third discount.

The judge’s Reasons for Sentence

9.  The judge noted that although the prosecution had offered no evidence against Lam it was clear from the Summary of Facts admitted for the purpose of the applicant’s plea that he was not acting alone.  She then went on to refer to the applicant’s criminal record. She described him as a persistent offender as he had 34 criminal convictions, of which 20 related to theft offences and 8 to actual pickpocketing offences. 

10.  The applicant’s last conviction was in 2012 and was a pickpocketing offence for which he was dealt with in the District Court.  At that time the applicant was jointly charged with his wife and was sentenced to 18 months’ imprisonment. The judge noted that in respect of this previous District Court conviction the presiding judge had enhanced a starting point of 15 months by a further 9 months because of the aggravating factor of the applicant being a persistent offender.  The presiding judge then added a further enhancement to allow for the aggravating factor of the offence being committed as a joint enterprise and by this route arrived at a final sentence of 18 months’ imprisonment.

11.  In the present case the judge said of the applicant’s criminal record:

“Clearly, this plus the other many terms of imprisonment have not had any deterrent effect on the defendant.”

12.  In respect of the offence of pickpocketing the judge said:

“Pickpocketing is a nuisance and a very annoying offence for victims. They must be deterred. As I have said, clearly, the defendant here is not deterred by lengthy terms of imprisonment.”

13.  The judge thereupon proceeded to sentence the applicant.  She took a starting point of 15 months’ imprisonment which she then enhanced to allow for the aggravating factors that she found present.  She added 3 months because the victim was targeted in what she considered to be a crowded place, namely Mongkok at about 7 pm.  She added a further 3 months for the aggravating factor of the applicant committing the offence in the company of another person.  Finally, she added a further 9 months for the applicant’s “persistent re-offending and incessant pickpocketing.” 

14.  Her final starting point, therefore, became 30 months’ imprisonment which she then discounted by one-third to allow for the applicant’s plea of guilty.  The final sentence that she imposed on the applicant was 20 months’ imprisonment.

The grounds of appeal

15.  In a submission attached to his Form XI the applicant said:

“I, CHENG Wai-leung, am married with 4 children. Since (I) have to support the children, the (financial) burden is heavy. Having no alternative and in a moment of aberration, (I) reverted to the former way, and committed this offence of theft of telephone again.

The ground of appeal against sentence is that in 2012, I committed the same offence with similar facts.  (I) also pleaded guilty at that time (at) the hearing in District Court.  The total sentence was 27 months of imprisonment, with one third discount upon a guilty plea, the resulting sentence was 18 months.  This time it was also a similar (offence) with similar facts. The main thing was that on this occasion the owner suffered no loss at all, the telephone was also returned to the owner, and (I) did not waste the court’s time.  I think that a sentence of 30 months is manifestly excessive.  In fact, I am deeply remorseful this time, and truly understand that doing something like this is against the law and is wrong.  (I) will never commit any offence in the future.  (I) will turn over a new leaf and be a good father again, and will rejoin the workforce soon.  (I) wish the justices in the Court of Appeal will reduce (my) sentence appropriately (and) as much as possible (to enable me to) look after (my) family.”

16.  The applicant did not file any written submission in advance of the hearing but at the hearing of his application he said that he had another ground of appeal which was that the judge erred in enhancing his sentence by 3 months to allow for the aggravating factor of the applicant having acted in concert with another, namely his female accomplice Lam.  The applicant submitted that by offering no evidence against Lam the prosecution acknowledged that she did not take part in the offence and that he, the applicant, was acting alone.  The prosecutor misled the judge by suggesting Lam was involved.  The applicant also said that he now accepted the other two enhancements by the judge were proper. 

Discussion

17.  The applicant’s complaint in the submission attached to his Form XI effectively comes down to a complaint that on this occasion the judge sentenced him to a longer period of imprisonment than he had received on the last occasion he appeared in the District Court charged with an identical offence. 

18.  The reason for the difference between the two sentences is quite clear.  In his earlier District Court sentence the presiding judge did not enhance the starting point to allow for the aggravating factor of the offence having taken place in a crowded area.  In the present case, the judge added a further 3 months for this aggravating factor.  At the hearing of the application the applicant accepted that the judge was entitled to enhance his sentence by the amount she did to allow for this aggravating factor.  He makes the same concession in respect of the enhancement for him being a persistent offender. 

19.  The applicant is right to make these concessions.  In the starting point the judge adopted and in these two aggravating factors, the judge relied on Court of Appeal authority.  The judge’s starting point cannot be criticized and nor can her determination that these two aggravating factors were present and that each of them warranted an enhancement of that starting point.  Neither of the two enhancements that the judge adopted are excessive.  The judge was quite correct in recognizing that this applicant is in need of additional deterrence in order to protect the public from his depredations. 

20.  The prosecution’s action in not proceeding against Lam but still alleging she was involved in the commission of the offence by the applicant is understandably confusing to him. When the fact of her involvement is then used as an aggravating factor by the judge to enhance the applicant’s sentence, it is not surprising that his confusion turns to grievance. 

21.  No doubt the prosecution had its reasons for the decision not to proceed with the prosecution of Lam.  Whether that decision was correct and the reasons for it proper and sufficient are, however, matters for the Director of Public Prosecutions, not for me.

22.  Nevertheless, notwithstanding that the prosecution acted in the way it did, this applicant, represented by counsel and no doubt acting on legal advice, admitted a Summary of Facts, which he knew would be used for the purpose of sentencing him, that clearly and unequivocally established that he committed the offence together with another. In these circumstances the judge was entitled to act on these admissions, determine that they revealed the presence of an aggravating factor and to enhance the applicant’s sentence accordingly.  There is no merit in this complaint of the applicant.

Conclusion

23.  For these reasons I found no arguable ground of appeal in his complaints and I refused him leave to appeal. 

24.  At the hearing of the application I advised him of his right to renew his application before the Court of Appeal but warned him that should he do so and should the Court of Appeal find no merit in his renewed application then it might exercise, adversely to him, the power given to it by section 83W of the Criminal Procedure Ordinance, to order that a certain amount of the period spent by him in custody pending the determination of his appeal should not count towards his sentence.