HKSAR v. THAPA, GANGA DEVI

HCMA 409/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 409 OF 2015

(ON APPEAL FROM KCCC 1697 OF 2015)

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JUDGMENT
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1.  This is an appeal against sentence. The appellant, who had a clear record, pleaded guilty to a charge of theft, contrary to Section 9 of the Theft Ordinance, Cap 210, before the magistrate[1] and was sentenced to 8 months’ imprisonment.

Facts

2.  The theft was one of a pick-pocketing incident, whereby on 4 May 2015 in the early hours of the morning at about 4:50 am the appellant stole a mobile phone from a man’s right front trousers pocket.  At that time, that man (the victim) was drunk and had fallen asleep outside the ground floor of 135 Nathan Road, Tsim Sha Tsui.

3.  As he felt someone searching his pocket, he woke up, he saw the appellant flee so he gave chase.

4.  Subsequently, the appellant was intercepted and the victim’s mobile phone was retrieved from her rucksack.

Grounds of Appeal

5.  The appellant in her Notice of Appeal, Form 102, appealed on the grounds that her sentence was too severe.  In her main grounds of appeal, she pleaded to this court to reduce the sentence of 8 months, as it was too long, as this was her first ever offence. 

6.  She stated she was a drug user.  She undertook not to repeat this offence again.  She was concerned that as a result of her sentence she may be deported from Hong Kong.  She was previously a permanent resident in Hong Kong, as she was born in Hong Kong, however as she had left Hong Kong for more than three years she had lost her permanent residency. 

Reasons for sentence

7.  The magistrate recognised that this was a case of pick-pocketing.  In his reasons for sentence he referred to numerous cases and took a starting point of 12 months’ imprisonment.  He gave her full credit for her plea of guilty and reduced the term to 8 months.

Discussion

8.  Quite properly the magistrate referred to this case as one of pick-pocketing.   The guidelines were laid down in the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  A guideline sentence of 12 to 15 months after trial was appropriate for a first-time offender.  This called for an immediate custodial sentence and not a suspended one.

9.  The Hon Ma CJHC (as he then was) gave the judgment of the Court of Appeal and in paragraph 9(1) he stated that:

“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.”

10.  The present offence involved an apparently drunken man who was vulnerable at the time.  In the case of HKSAR v Nankinga Margaret, HCMA 897/2009, the late Mackintosh J stated that a starting point of 13½ months before the discount for plea is appropriate for an offender who targets a man who is believed to be drunk and more susceptible to having his pocket picked.

11.  In light of the guideline of Ngo Van Huy and Nankinga Margaret, the sentence is not manifestly excessive.

12.  In respect to whether the appellant may be deported from Hong Kong, it is not a matter relevant to this appeal and it is not an humanitarian ground to which justifies a further reduction in sentence.

13.  The appellant’s appeal against sentence is therefore dismissed.