HKSAR v. YU LUNG HOI

CACC 379/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 379 OF 2013

(ON APPEAL FROM DCCC NO. 779 OF 2013)

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Yu Lung Hoi) appeared before Chief District Judge Poon on 2 October 2013, and pleaded guilty to attempted theft (charge 1) and failing to surrender to custody without reasonable cause (charge 2).  The judge adopted respective starting points of 30 months and 6 months for the two charges and reduced them by one third to 20 months and 4 months.

2. The judge ordered the sentences to be served consecutively, thus making a total sentence of 24 months’ imprisonment on the two charges.  At the time of sentence, the applicant was serving a 12-month sentence for possession of dangerous drugs and possession of an identity card relating to another person (the two new offences).  The judge ordered the 24-month sentence on charges 1 and 2 to be served consecutively to the 12-month sentence on the two new offences, making a total sentence of 36 months’ imprisonment.

3. Represented by Ms Monica Chow, the applicant sought leave to appeal against sentence.  At the end of the hearing, we dismissed the application and indicated that we would hand down our reasons in due course and this we now do.

The facts

4. On 9 July 2011, the applicant and Chan Man-wai (Chan) were looking for preys to steal from in Mongkok area.  They followed an 18-year old girl who was carrying a bag at her right shoulder to the first floor of the Trendy Zone shopping centre.  The applicant stood behind the girl and Chan tried to unzip the girl’s bag, but failed as the girl suddenly moved.

5. The applicant and Chan continued to follow the girl to the crowded junction of Sai Yeung Choi Street South and Dundas Street.  The applicant pointed at the girl and Chan again pulled open the zipper of the girl’s bag.  Police officers who had been following and observing the applicant and Chan intervened and arrested them.  They were subsequently charged.

6. The applicant was granted bail on 21 December 2011 and was due to attend Kwun Tong Magistracy on 2 March 2012.  He did not turn up and was only re-arrested on 6 July 2013 when the applicant committed the two new offences.  On 19 August 2013, the applicant was sentenced to 12 months’ imprisonment for the two new offences.

The applicant’s previous convictions

7. The applicant was born in January 1966.  He has a total of 22 previous convictions including the two new offences.  There are 10 previous convictions for theft/attempted theft/handling stolen goods and the rest are mainly drug related.

The sentence

8. The judge pointed out that Chan was sentenced to 20 months’ imprisonment upon his guilty plea on charge 1.  The judge emphasized that the applicant was a repeat offender and that the offence was committed in a busy area in concert with another person.  The judge considered a 30-month starting point for charge 1 and a 6-month starting point for charge 2 appropriate.

9. The judge reduced the starting points to 20 months and 4 months respectively on account of the guilty plea and ordered them to be served consecutively as they were separate offences committed at different times.  The judge further ordered that the total sentence of 24 months’ imprisonment to be served consecutively to the 12-month sentence in respect of the two new offences.

Grounds of Appeal

10. Ms Chow raised two matters, (1) the 30-month starting point for charge 1 is wrong in principle, and (2) the total sentence of 36 months (including the 12-month sentence for the two new offences) after plea is manifestly excessive.

11. Ms Chow complained that the judge had not specified the basic starting point as suggested in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  Ms Chow pointed out that the judge might not have any knowledge, or in mind, the personal background of, or the mitigation advanced on behalf of Chan, and suggested that in respect of charge 1, the judge was wrong to impose on the applicant the same sentence as Chan.

Discussion

Is the 30-month starting point manifestly excessive?

12. As Ma CJHC (as he then was) pointed out in Ngo Van Huy (supra), theft by pickpocketing is a serious offence and should be condemned and visited with a heavy penalty as it is easy to commit and could result in significant inconvenience to its victims.  Such offence will also adversely affect the reputation of Hong Kong as a tourist hub.

13. The Court of Appeal in Ngo Van Huy (supra) laid down the following sentencing guidelines, namely 12 to 15 months’ imprisonment after trial for a first time offender with upward adjustment for aggravating features, including (1) the offence was committed in crowded public places; (2) the defendant was a repeat or persistent offender.

14. The Court of Appeal commented that if a defendant commits the offence in conjunction with another, the sentence should be higher and where a poor previous record for similar offences exists, a substantially higher sentence should be imposed.

15. The Court of Appeal further opined that when dealing with a repeat offender and when the offence was committed in a crowded public place, 9 months and 3 months respectively should be added to the 12 to 15-month starting point.

16. The applicant’s record of previous convictions, though not the worst, is appalling and he is clearly a repeat and persistent offender.  The offence was committed in a crowded public place in conjunction with Chan.

17. When those aggravating factors are taken into account, the 30-month starting point for charge 1 is justified.  As pointed out by Mr WT Chiu, Senior Public Prosecutor, for the respondent, the Court of Appeal in HKSAR v Chan Mei Yee, Carman [2010] 4 HKC 571, in dealing with a case involving a defendant (with 10 previous theft convictions), who together with another attempted to steal from a passer-by in a crowded Mongkok area, observed at p 579A-C:

“One commences with a starting point of 15 months’ imprisonment for the attempted theft itself. One then addresses aggravating features. Taking into account the fact that the offence took place in a busy street, that there was more than one offender and the many previous offences which lie at the applicant’s door, it seems to us that an overall sentence of 30 months’ imprisonment is appropriate.”

18. Having considered the background of the case and that of the applicant carefully, we were not persuaded that the 30-month starting point adopted by the judge for charge 1 is manifestly excessive.

Is the judge right to order the sentences (including the 12-month sentence for the two new offences) to run wholly consecutively?

19. Ms Chow did not complain about the consecutive sentences for charges 1 and 2.  She argued that the total 36-month sentence for charges 1 and 2, and the two new offences was manifestly excessive, but she did not explain why.

20. The applicant was arrested in July 2011 and was put on bail.  He did not answer bail for over one year.  Whilst he was absconding, he committed further offences of a different nature and he was re-arrested because of that.  What the applicant did was an affront to law and to the administration of justice.

21. The applicant must be additionally punished for charge 2 of failing to surrender to custody and for the offences that he further committed whilst absconding as accepted by Ms Chow.  The judge was entitled to order consecutive sentences for charge 2 and for the two new offences.

Conclusion

22. We were not persuaded that the total sentence of 36 months imposed on the applicant for charges 1 and 2, and for the two new offences, is manifestly excessive.  We therefore dismissed the application for leave to appeal against sentence.