HKSAR v. YEUNG KAM TUNG

CACC 427/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 2012

(ON APPEAL FROM DCCC NO. 748 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  On 28 September 2012 the applicant was convicted by District Judge Woodcock on his own plea of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.  He was sentenced to a period of 1 year and 4 months imprisonment and now applies for leave to appeal against sentence.

The Circumstances of the Offence

2.  At about 10.45 p.m. on 14 July 2012 the victim, a young lady of 21 years of age, was walking home.  She encountered the applicant in a corridor of the 19/F of Wah Cheong House, Wah Fu (II) Estate, Pokfulam.  The applicant engaged her in conversation and whilst she was responding to a question that he had asked of her, he suddenly snatched her mobile phone, a smart phone valued at about HK$4,000 and fled down the rear staircase.  The victim shouted for help and gave chase and the applicant was subsequently subdued by neighbours of the victim at the staircase between the 14/F and 15/F of Wah Cheong House.  The victim’s mobile phone was found on the floor next to the applicant but the screen of the phone had been damaged during the incident.  Police were called and after being cautioned the applicant made a full confession to the offence.

The Mitigation Advanced at Trial

3.  The applicant was aged 23 at the time of this conviction.  He had ten previous convictions, nine of them for theft-related offences.  His first conviction took place when he was only 14 years of age and between 2003 and 2006 he was placed on probation.  He came before the courts again in 2008 and was sentenced to a Drug Addiction Treatment Centre (“DATC”).  He received another such sentence in 2009.  Then in 2012 he received his first sentence of imprisonment; a period of 4 months for a conviction for theft.  He committed the present offence on the day he had been released from prison for his last offence.  He explained that upon his release from prison that morning he had no money and nowhere to go.  He was hungry and desperate and this led him to committing the present offence.  It was said that he has been rejected by his family and so can no longer look to them for support.

The Reasons for Sentence

4.  The District Judge recognized that the offence was essentially a snatching case with no violence used against the victim.  In noting the applicant’s previous convictions the District Judge said that she suspected that a drug habit had led to the commission of those offences.  This was no doubt a reference to the two occasions the applicant had been sentenced to DATC.

5.  The judge regarded his commission of this offence on the same day as his release from prison for his previous conviction as an aggravating factor, and she took the same view of his history of previous offences of a like nature. Characterising the applicant as a persistent offender the District Judge said that she would, as a consequence, enhance the starting point that she would otherwise have deemed appropriate for this offence.  Without identifying a precise starting point she said that offences of this nature would normally attract a custodial sentence of between 15 to 18 months imprisonment.  She then enhanced her starting point to allow for the aggravating factors that she had identified and, by this means, she reached a sentence of 24 months. Discounting this sentence by one third to allow for the plea of guilty she sentenced the applicant to a period of 1 year and 4 months imprisonment.

The Grounds of Appeal

6.  There are three grounds of appeal.  The first ground of appeal is that the judge erred in concluding that this offence warranted a sentence in the range of 15 to 18 months imprisonment.  In respect of this ground of appeal it is argued by the applicant that there is no actual tariff for snatching cases and that the range of 15 to 18 months imprisonment is more appropriate to pick-pocketing offences which should be regarded as more serious in nature.

7.  The second ground of appeal is that the judge enhanced the sentence by an excessive amount.  Under this ground of appeal the applicant noted that it is impossible to precisely calculate the degree of enhancement as the judge has not identified her starting point.  Had the starting point been 15 months imprisonment, then the increase would have been by an amount of 9 months which would represent an enhancement of 60% of the original sentence.  Had the judge adopted a starting point of 18 months, then the increase would have been by an amount of 6 months and this would have represented a 33.3% enhancement of the original sentence.  The applicant contends that as the enhancement was solely due to the fact that the applicant was a persistent offender, an enhancement of either of the amounts that must have been used by the judge is excessive.

8.  The third ground of appeal is simply that given the circumstances of this case the sentence of 1 year and 4 months was manifestly excessive.

Discussion

9.  In saying that “generally, offences of this nature would attract a custodial sentence of between 15 and 18 months imprisonment” the judge did not refer to any authority.  We do not take her to be laying down any tariff or guideline for this kind of offence as indeed none is appropriate.  The circumstances of this type of offence can vary enormously and it does not lend itself to any particular tariff, particularly one so narrow as 15 to 18 months imprisonment.  The judge may well have been saying no more than the kind of offences commonly encountered by the court will usually fall into this range but she should not have considered herself, if this indeed is what she did, as bound by any kind of tariff or sentencing range.  Of course, whenever a judge does impose a sentence which falls within a particular guideline sentencing range it is still incumbent upon her to identify the point within the range which she adopts as her starting point for sentencing the offender before her. The failure by the judge to do this has made it impossible to know by what amount she enhanced her starting point for this applicant’s sentence.

Ground 1

10.  The circumstances which may, at first glance, make this case seem a reasonably serious case of snatching are that the victim is a young woman who was alone late at night.  However, the victim was not walking down a lonely, deserted street where she might be particularly vulnerable, but rather was within the precincts of the building in which she lived and immediately the offence took place was able, by her screams for assistance, to elicit help from the residents of the building. This lead to the immediate apprehension of the applicant.

11.  Mitigating the seriousness of the offence is the fact that there was no violence used towards the victim and no weapons or threats employed.  Nor was there present in this case any suggestion that the applicant had been stalking the victim or any evidence to suggest that the offence was anything other than an opportunistic one.  It was a snatching in its most simple form.  In our view a sentence of 12 months imprisonment is an appropriate starting point for an offence of this nature committed in these circumstances.

Ground 2

12.  The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant.  The first was the fact that the offence was committed on the day of his discharge from prison for a like offence.  The second was his history of offending which caused her to characterise him as a persistent offender.

13.  Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender.  Whether the fact that he committed this offence on the day of his discharge is truly evidence of the applicant being a persistent offender or whether it merely evidences a person in a desperate situation is arguable.  As to his persistent offending we note that his first offence was committed in 2003 when he would have been only 14 years of age.  As we have indicated he was placed on probation for a number of years and then sentenced to DATC.  He next came before the court in 2009 on two counts of theft and again was committed to a drug addiction treatment centre.  After being released from DATC he continued to re-offend as earlier set out.

14.  To say that he has had a troubled youth is perhaps stating the obvious but we would be reluctant at this stage to characterise him as a persistent offender and give up all hope for his future rehabilitation.  Undoubtedly, he is a person who needs to be deterred but we are not convinced that he should yet be placed in the category of persons from whom society needs to be protected. That view of him may need to be revisited should he offend again in the future.

15.  Taking this view of the applicant’s life to date does not mean that the applicant escapes the consequences of his previous criminal history.  From that history it is clear to us that some enhancement of sentence is necessary in order to provide the applicant with the additional deterrence that he so clearly needs.

16.  The general sentencing principle that reoffending in the same or similar way may aggravate the offence, for which the offender presently stands to be sentenced, was explained by Stuart-Moore VP in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 where, at 834 A to C, he said:

“This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender.”

17.  In HKSAR v Lam Kwai Wa, unreported, HCMA 1078/2002 Deputy High Court Judge McMahon, as he then was, explained this principle at paragraph 9 of his judgment when he said:

“As I understand that principle it is not that an offender is being sentenced at a higher level on the basis of his prior criminal record, but that his sentence should be enhanced on the narrower basis that his prior history in repeatedly committing a certain category of offence demonstrates that the personal deterrence factor of previous sentences has been, in that offender's case, insufficient to deter him from again committing that type of offence. Considerations of preventing the offender from further offending in that way and the protection of the public then justify an enhancement of the sentence which would otherwise have been imposed.”

18.  There is no percentage of enhancement that appellate courts have said is appropriate in any particular situation.  The percentage of enhancement will vary according to the seriousness of the offence, the circumstances of the offender and the sentencing purpose for which enhancement is being employed. In the circumstances of this case and of this offender and given that the only purpose of the enhancement is to provide additional deterrence to this applicant, we are of the view that an enhancement of 3 months, representing an increase of 25% on the starting point of 12 months imprisonment, is appropriate.  Consequently, after enhancement, the sentence should be 15 months imprisonment.  When discounted to allow for the plea of guilty, the final sentence becomes 10 months imprisonment.

The third ground of appeal

19.  Having determined that an appropriate starting point for this offence was only 12 months imprisonment and that an enhancement of only 3 months is appropriate, it is clear from our decision that we regard the sentence imposed by the judge as manifestly excessive.

Conclusion

20.  The sentence which we now impose, which is calculated on the basis of a starting point of 12 months imprisonment, enhanced to 15 months imprisonment and then discounted to 10 months imprisonment, is the one which, for the reasons earlier adumbrated, we believe is appropriate to the circumstances of this offence and the circumstances of this offender.

21.  We, therefore, allow the application for leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal, quash the sentence imposed by the trial judge and in substitution therefore, sentence the applicant to 10 months imprisonment.