HKSAR v. DUONG VAN DUNG

CACC 284/2004
CACC 286/2004
CACC 295/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOs.284, 286 AND 295 OF 2004

(ON APPEAL FROM DCCC 245/2004, 488/2004 AND 495/2004)

____________________

CACC 284/2004

____________________

CACC 286/2004

BETWEEN

____________________

CACC 295/2004

BETWEEN

____________________

_________________

J U D G M E N T

_________________

Stuart-Moore, VP (giving the judgment of the Court):

1.  Each of the applicants now before the court applies for leave to appeal against sentence in relation to theft by pick pocketing.  The circumstances of these cases, each of which was dealt with in the District Court, have common features which make it desirable that they should be heard together.  Accordingly, they have been consolidated.

CACC 284/2004

2.  The applicant in the first case (CACC 284/2004), Duong Van Dung (“Duong”), aged 33, pleaded guilty on 4 June 2004 before Judge Day to theft (charge 1) and resisting a police officer in the execution of his duty (charge 2).  The facts revealed that a Madam Wong was jostled in Argyle Street, near Tung Choi Street, Mongkok, at about 7:00 p.m. on 7 January 2004 after she had put her mobile telephone back into her pocket.  She checked her pocket only to discover that her telephone had been stolen.  At that time, police were watching Duong and another person (D2) whose activities had given rise to suspicion because of the attention they were apparently paying to the handbags and pockets of pedestrians.  They were followed into a telephone shop where Duong tried to sell a telephone to a customer.  It was, as it turned out, Madam Wong’s property, the subject of the theft charge.  The applicant was arrested and, after a violent struggle, he was eventually subdued (charge 2).  One of the officers received a minor injury in the course of making the arrest.

3.  In passing sentence, the judge noted the fact that five of Duong’s thirteen previous court appearances involved pick pocketing offences.  He went on to say:

“	6.	Sentences for straightforward pickpocketing cases with no aggravating features tend to start at around 12 to 15 months.  Here there are aggravating features.  The theft was in a well-known, crowded shopping area.  And I note the professionalism he brought to his offence: Madam Wong had no idea her phone was stolen until after the event.  These are the sort of matters which justify an increased starting point.
	7.	Unfortunately for Mr Duong, it does not stop there.  As I have said, his record is quite appalling.  He came to Hong Kong in 1986 and within four years was starting to accumulate his record.  He then embarked upon a criminal career which he has pursued with some vigour ever since.
	8.	It is well established that a court should not simply ignore such a record.  If authority is needed for that, I would suggest we look no further than HKSAR v Chan Pui-chi [1999] 2 HKLRD.  As the court said, it is the constant repetition of these sort of offences which itself increases the gravity of the offences so far as sentence is concerned.
	9.	The sentences he has received in the past have proved no deterrent at all to him, and the prevention of further offences is demonstrably in the public interest.  He falls squarely into the category dealt with in Chan Pui-chi, and his record demands a revision of the starting point.”

4.  The judge also had to consider an application under section 27(2)(c) and (11) of the Organised and Serious Crimes Ordinance, Cap. 455 (“OSCO”) for an enhancement of sentence on the ground that this was a prevalent offence.  The undisputed evidence provided by a Chief Inspector was described by the judge as follows:

“… The figures he presents show an alarming increase in reported pick pocketing offences in recent years.  In 2001 there were 717 such cases; in 2002 there were 859, showing an increase of nearly 20 per cent; and in 2003, the figures leapt by 95.7 per cent to 1,681.  In January alone this year there has been an increase of 17 per cent.” 

The judge, being satisfied on these figures that the offence was prevalent, then applied the sentencing approach laid down in HKSAR v Tam Wai-pio [1998] 4 HKC 291 where enhancement is a factor to be taken into account.  He took a starting point of thirty months which he reduced by a third to twenty months to reflect the plea of guilty.  He considered that a fifty per cent enhancement of sentence was called for which raised the sentence once again to two and a half years’ imprisonment.  A consecutive sentence of one month, about which no criticism is made in these proceedings, was imposed on the second charge, making thirty-one months in all.

CACC 286/2004

5.  The applicant in the second case (CACC 286/2004), Doan Van Do (“Doan”), aged about 35, pleaded guilty on 8 June 2004 before Judge Line to the theft of a mobile telephone at the junction of Sai Yeung Choi Street South and Nelson Street, Mongkok.  This offence occurred on 7 April 2004 at about 6:15 p.m. while Doan was being kept under observation because of his suspicious behaviour.  He was seen to put his hand into a person’s jacket and pull out a mobile telephone.  Almost immediately, Doan was arrested and the stolen item fell from his hand.

6.  The judge was provided, in the context of an application under OSCO, with the same figures as those with which Judge Day had been presented in CACC 284/2004.  He, too, was satisfied that the offence was prevalent.

7.  This offence represented the fourteenth appearance of Doan in a criminal court in Hong Kong.  Eleven of his previous convictions were in respect of crimes involving dishonesty.  In passing sentence, the judge remarked that Doan had been convicted of pick pocketing on no less than five occasions since September 2000 and that Doan’s persistence justified a thirty-month starting point with a one-third reduction to take into account his plea of guilty.  This left twenty months, but the judge indicated that there should be an enhancement by a third for ‘prevalence’ under OSCO.  A sentence of twenty-six months’ imprisonment was imposed.

CACC 295/2004

8.  The applicant in the third case (CACC 295/2004), Nguyen Huu Dung (“Nguyen”), aged 36, pleaded guilty before Judge Line on 10 June 2004 to a theft which occurred on 4 April 2004 at the junction of Sai Yeung Choi Street South and Fife Street, Mongkok.  Again, the item stolen was a mobile telephone, which Nguyen removed from the victim’s jacket by pulling on the strap which could be seen outside the jacket.  Nguyen immediately passed the telephone to his accomplice (D2). 

9.  Nguyen’s criminal record is also a long one.  This was his nineteenth appearance in a criminal court in Hong Kong.  Dealing with his previous offences for pick pocketing the judge said:

“… in 2001 you were sentenced to 10 months’ imprisonment for pick pocketing; in 2002, another 10 months for pick pocketing; and in 2003, 12 months for pick pocketing; and I suspect that would reflect starting points of 15 months and 18 months.  You clearly have not been deterred by those convictions and sentences from carrying on your trade as a pickpocket.”

10.  The judge adopted a starting point of twenty-seven months.  This was reduced by a third to eighteen months for the plea of guilty, but then increased by a third to twenty-four months for ‘prevalence’ under OSCO.

The application

11.  The principal submission advanced by Mr Kevin Chan on behalf of the applicants in each case was that the starting points adopted were, in all the circumstances, manifestly excessive.  A starting point of thirty months’ imprisonment was adopted in CACC 284/2004 and in CACC 286/2004 and, in CACC 295/2004, the starting point was twenty-seven months.  In each case, the sentence had been imposed before 28 September 2004 when judgment was given in HKSAR v Ngo Van Huy CACC 107/2004, in which sentencing guidelines were given for offences of this nature.  Mr Chan, who also appeared in that appeal, relied on Ma CJHC’s judgment when submitting that the sentences imposed on these applicants should be reduced.  In placing reliance on Ngo Van Huy, Mr Chan argued that the record of the appellant in that case was worse than in any of the applications presently before us and, for this reason, a lower starting point than the twenty-seven months adopted by the Court of Appeal in that case should have been taken in each of the present cases.  As we indicated during the course of argument, we do not, with respect, consider that this was a point of substance.  The Court of Appeal in Ngo Van Huy’s case, made it very clear that it was an aggravating factor where the accused is a “repeat offender or, worse still, a persistent one” (and see: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at 833-4; [1999] 3 HKC 848 at 851).  It is plain in each of the cases now before us that the applicants were “persistent” pickpockets.  We do not propose to go down a path of comparing each record to see whether one is worse than the others.  The general good sense and experience of the sentencing judge will determine, within the guidelines laid down in Ngo Van Huy, what will be an appropriate sentence in all the circumstances and, if persistence is an aggravating factor, we incline to the view that it matters little how long the offender’s record may be.  The aggravation lies in his persistence in committing the same kind of offence after previous sentences have failed to act as a deterrent. 

12.  The facts in Ngo Van Huy were very similar to those presently before us.  The appellant had pleaded guilty to a charge of theft of a mobile telephone.  He had been operating as a pickpocket on his own in exactly the same area of Mongkok with which we are presently concerned when he stole from a female victim’s jacket pocket.  The appellant had been before the courts on twenty-seven occasions.  His convictions included seventeen offences relating either to theft or attempted theft.  He was an habitual criminal for whom previous sentences of between three and eighteen months for his theft-related offences had had little or no deterrent effect.  A starting point of twenty-seven months’ imprisonment was adopted by the sentencing judge before this was reduced to eighteen months to reflect his guilty plea.  However, the judge added six months to that sentence, saying:

“	10.	Your record demonstrates a greater aggravation than just not being a stranger to pick pocketing.  You are a persistent pickpocket who will not be deterred by the sentences that have been passed upon you, and that aggravates this present offence before me significantly.
	11	To reflect that, I have increased the sentence by a further 6 months.  That will give a term of 2 years’ imprisonment”

In addition to this, the judge added a further six months (representing a 25% increase on the twenty-four months so far reached), bringing the total to thirty months’ imprisonment, when saying that the appellant’s “persistence in crime is a separate aggravating factor from the further aggravation that the crime is prevalent and growing”.  This last part of the sentence was pursuant to the application under section 27 of OSCO for enhancement of the sentence on the ground of ‘prevalence’.

13.  It is well-established, as the judgment in Ngo Van Huy’s case (at paragraph 9(2)) makes clear, that the starting point (that is, after trial) for a first time offender who steals by pick pocketing is twelve to fifteen months immediate imprisonment.  However, account must be taken of any factors which may aggravate the offence so far as sentence is concerned.  Ma CJHC set out (at paragraph 9(4)) the following factors:

“(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 Vy Van Kien.

(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 and Another, unreported, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 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 R v Saldana Alca Jose and Another, unreported, CACC 655/1996, 19 August 1997.  In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pick pocketing :

‘We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pick pocketing, even without international ramifications, might in future properly attract a starting point of at least 2 1/2years’ 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.” 

14.  Ma CJHC in Ngo Van Huy’s case went on to consider the change in sentencing policy in Hong Kong, reflected in HKSAR v Chan Pui-chi (above) where it was decided that if an offence of the same kind is repeated, this may in itself be regarded as an aggravating factor.  Previously, as Ma CJHC said, “an accused would simply not receive any discount from which a person of clear record might benefit”.  Furthermore, a greater enhancement of sentence under section 27 of OSCO than the twenty-five per cent adopted by the judge was considered to be appropriate where prevalence is proved.  Importantly, Ma CJHC continued by saying:

“… 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.” 

15.  Applying the guidelines the court had already laid down in Ngo Van Huy, and looking afresh at the sentencing of the appellant in that case, a fifteen-month starting point was adopted, (this being at the upper end of the twelve to fifteen-month bracket for a first time offender).  To this, the court added nine months on account of the appellant’s appalling criminal record.  The other feature in aggravation which was considered was the fact that the offence had been committed in a crowded area (as, we may add, will be common to the majority of such offences).  This led to an additional three months being added to the sentence bringing the total thus far to twenty-seven months.  Following the procedure laid down in HKSAR v Tam Wai-pio [1998] 4 HKC 291, at 298, a one-third reduction was given for the plea, leaving eighteen months, before enhancement was made under OSCO of six months, making twenty-four months in all.  This was six months less than the sentencing judge had imposed.

16.  Ngo Van Huy’s case had one important distinction from all of the applications presently before us which led to the reduction of the appellant’s sentence.  In that case, there had been, as the court expressed it, “a certain amount of double counting in the sentence imposed by the judge”.  This was a reference to the fact that having taken the longer starting point than normal of twenty-seven months because the appellant was a “professional pickpocket”, and having reduced this by a third to reflect the plea, the judge had then added, apart from the six months he later added for prevalence, a further six months (without any discount), to take account of the appellant’s “persistent” pick pocketing.  Yet, by taking a much longer starting point than usual it is apparent that the appellant’s record had already been taken into account.  No such error occurred in any of the cases now before us. 

17.  It is plain that the guidelines in Ngo Van Huy, far from reducing the general level of sentences on pickpockets, have confirmed earlier decisions of this court in respect of first-time pickpockets.  For other offenders of this kind, who fall into a category with aggravating features, the court has indicated that sentences of two years or more after trial will be appropriate.  Further enhancement by a third will apply where an application under section 27(2) and (11) of OSCO is shown to have been justified.  In such cases, the procedure in Tam Wai-pio [1998] 4 HKC 291, at 298, will apply although in that case the court was concerned with an ‘organised crime’ as opposed to ‘prevalence’.  This court said as follows:

“… we offer the following guidance in order to minimise the risk of confusion for cases where enhancement of sentence has to be dealt with under the procedure laid down in the Ordinance.  This approach would, of course, have to be adapted as necessary where multiple offences are involved, some of which are not organised crimes.  In such circumstances, a judge should consider, determine and set out in clear terms:

(1)	(a)	the appropriate starting point having regard to the part played by the defendant, and
	(b)	the sentence that the court would have imposed taking into account the defendant’s mitigation and totality;
(2)	whether the specified offence was an organised crime within the meaning of s 2 of the Ordinance;
(3)	whether the crime calls for an enhancement of the sentence under the terms of s 27(11) having regard to the information supplied by the prosecution to the court under ss 27(2)(a) to (e) or s 27(8) or the general nature of the organised crime itself;
(4)	If enhancement is called for, the percentage increase by way of enhancement of the sentence.

In the present case, if this simpler formula had been adopted, precisely the same result would have been achieved.  Taking the facts and figures adopted by the trial judge, and using the four-stage process we have proposed, the rationale for the sentences imposed would have come to this:

(1)	(a)	the appropriate starting point after trial would have been two years on each charge, and
	(b)	taking into account the mitigation, a one-third discount would have left 16 months’ imprisonment on each charge;
	(c)	taking into account totality, this 32 months could properly be reduced to 24 months;
(2)	each offence constituted an organised crime within the meaning of the Ordinance;
(3)	enhancement was called for having regard to the nature of the offences;
(4)	a 50% increase in sentence would have raised the overall sentence to one of 36 months.”

18.  Returning to the present applications, and with the principles newly laid down in Ngo Van Huy in mind, we look at each case in turn. 

CACC 284/2004

19.  We begin by looking afresh at the sentencing of Duong in CACC 284/2004.  The initial starting point of fifteen months is appropriate.  The aggravating features were that the applicant was a persistent pickpocket, he was assisted in his endeavours by D2 and he operated after dark at a busy time in a crowded area.  These factors, in our view, entitled Judge Day to adopt a thirty-month starting point, although this was at the high end of the range for all but organised gangs of thieves.  However, the enhancement by fifty per cent under OSCO was clearly higher than that recommended in Ngo Van Huy and to this extent, as a matter of principle, we must give leave.  After a reduction of a third to give credit for the plea, the applicant’s sentence, without enhancement under OSCO, amounts to twenty months.  In addition, an enhancement (for arithmetical simplicity) of a further six months, representing just under a third, pursuant to section 27 of OSCO, brings the total to twenty-six months’ imprisonment.

20.  For the reasons we have given, we treat the hearing of the application in CACC 284/2004 as the appeal and allow the appeal by reducing Duong’s sentence for theft from thirty months to twenty-six months’ imprisonment.  However, the sentence of one month’s imprisonment on charge 2 will continue to be served consecutively, making twenty-seven months’ imprisonment in all.

CACC 286/2004

21.  In CACC 286/2004, again the initial starting point of fifteen months’ imprisonment is justified.  The aggravating features were that the applicant, Doan, was a persistent pickpocket who operated at a busy time in a crowded area of Mongkok.  We have noted the fact that his record is less than the criminal record under consideration in Ngo Van Huy’s case, but we are concerned with whether the starting point of thirty months adopted by Judge Line was manifestly excessive.  We do not consider that it was.  Giving the applicant the benefit of a one-third discount for plea, this sentence becomes twenty months.  This, with the enhancement of about a third under the provisions of section 27 of OSCO, which the sentencing judge adopted, left a sentence of twenty-six months.

22.  We do not consider that, in the outcome, the sentence is one which justifies any interference on the part of this court.  Doan’s application is, therefore, dismissed.

CACC 295/2004

23.  In CACC 295/2004, similar considerations to those in CACC 286/2004 apply.  This was pick pocketing by a persistent thief, who in each of the three years prior to this offence had been convicted of offences of the same kind.  Again, whilst having a less lengthy record than Ngo Van Huy, the applicant, Nguyen, is in a similar category of offender.  He operated with an accomplice in the hours of darkness in Mongkok.  It may be that at 1:17 a.m. the streets were less busy than during the early evening, but this was still unquestionably an area, to adopt the words in Ngo Van Huy (at paragraph 9(4)(b)), where “the public is at particular risk”.  In his case, the starting point taken by Judge Line was twenty-seven months, which he reduced to eighteen months to give credit for the plea.  The judge’s enhancement under the provisions of section 27 of OSCO was by a third, leaving the applicant with a sentence of twenty-four months.  It seems probable that the applicant received a slightly lower starting point than that adopted two days earlier by the same judge in CACC 286/2004 to avoid the arithmetical difficulty of enhancing a discounted sentence of twenty months by exactly a third.  However, in such a case, so long as the approximation is under rather than over a third, no injustice whatsoever is caused.  In this sense, the applicant in the present case was fortunate that his sentence was not longer.  In any event, this was a sentence which was not out of line with the guidelines in Ngo Van Huy.

24.  Accordingly, Nguyen’s application is dismissed.