HKSAR v, LIU LIN FENG

CAC C 206/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 206 OF 2011

(ON APPEAL FROM DCCC NO. 135 OF 2011)

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BETWEEN

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REASONS FOR JUDMENT

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Hon Hartmann JA (giving the reasons for judgment of the Court):

Introduction

1.  On 5 May 2011, the applicant pleaded guilty in the District Court before Judge Anthea Pang to two charges of theft (by means of pickpocketing) under s.9 of the Theft Ordinance, Cap 210, and one charge of resisting police officers in the execution of their duty under s.63 of the Police Force Ordinance, Cap 323.  The applicant was sentenced to a total of 33 months’ imprisonment.

2.  The applicant sought leave to appeal that sentence on the basis that it is both wrong in principle and manifestly excessive.

3.  Having heard submissions, we dismissed the application saying that we would give our reasons later.  We do so now.

Background

4.  On 13 January 2011, the applicant, a 29 year old man, came to Hong Kong from the Mainland.

5.  On that same day, at about 5.30 in the evening, the applicant boarded an MTR train.  It was the evidence of two police officers who were on duty in plain clothes in the same train that the applicant was in the company of two other men.

6.  As the train drew into a station, the applicant and his two companions were seen to draw close to a female passenger who was preparing to alight.  In order to distract the female passenger, one of the two companions dropped something onto the floor.  The applicant was then seen to take a mobile telephone – an iPhone – from the woman’s jacket pocket.  This was the subject of the second charge of theft.

7.  With the stolen iPhone in his possession, the applicant immediately alighted from the train.  He was pursued by the two police officers who attempted to arrest him.  The applicant resisted, the struggle lasting approximately a minute.  An off-duty police officer who was nearby was forced to render assistance.  As a result of the struggle, the two officers who pursued the applicant from the MTR train suffered minor injuries.  This was the subject of the single charge of resisting police officers in the execution of their duty.

8.  After his arrest, the applicant was found to be in possession of a second iPhone with its SIM card removed.  Under caution, he admitted that he had stolen the telephone earlier that same day from a person in another MTR station.  This was the subject of the first charge of theft.

The ‘Newton’ hearing

9.  While the applicant admitted that he had committed the theft on the MTR train (the subject of the second charge), he denied that he had done so as a member of a group.  It was his assertion that he had acted alone.

10.  A Newton hearing was conducted.  The two police officers who witnessed the events testified.  The applicant, as was his right, did not testify.

11.  The officers spoke of their attention being drawn to a group of three men, including the applicant, who appeared to be surreptitiously checking their fellow passengers.  One of the two police officers testified that he witnessed an exchange of words among the three men.  Both officers spoke of the three then acting in concert to bring about the successful theft of the mobile telephone.

12.  The judge was satisfied that she could rely on their evidence as proof of the fact that the applicant had not acted alone but had done so as part of a joint enterprise.

The manner in which the sentence was calculated

13.  In assessing sentence, the judge had reference to the guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, as they applied to first time offenders, the applicant being such an offender.  The guidelines relevant to the present application are as follows (paragraph 9, page 7):

“(2) The guideline sentence of 12‑15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include :

(a) …

(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, [1999] HKEC 1062), Court of First Instance; HKSAR v HoMinhCong, (unreported, HCMA 547/1999), 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). In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :

‘We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.’”

14.  A helpful commentary on these guidelines was given by this Court (per McMahon J) in HKSAR v Chiu Suet Yee, Angel (unrep., CACC 105 of 2010) in which the following was said (paras 10 – 12):

“10. A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point) a sentencing court should commence.

11. In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors. Such matters as the value of the property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences. Each case will be fact sensitive and considerable allowance should be given to the exercise of the sentencing judge’s discretion.

12. In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.”

15.  In light of this guidance, the judge assessed sentence in respect of each charge as follows.

(i) The first charge (theft)

16.  In selecting an initial starting point within the 12 to 15 months range, the judge adopted a starting point of 15 months.

17.  The judge then had regard to what she considered to be two aggravating features, adding three months in respect of each.  The first was the admitted fact that the theft had been carried out in an MTR station and the second the finding that on all the evidence the applicant must have entered Hong Kong in order to turn a quick profit by engaging in criminal activity: the proof being the fact that on his first day in Hong Kong he had committed two thefts.

18.  The resulting sentence of 21 months was then reduced by a third in recognition of the applicant’s plea of guilty, the result being a sentence of 14 months’ imprisonment.

(ii) The second charge (theft)

19.  The judge again took 15 months as a starting point.  In respect of this charge, however, she identified three aggravating features.

20.  As with the first charge, two of the aggravating features were, first, that the theft had been carried out in the MTR and, second, that the applicant must have come to Hong Kong in order to turn a quick profit by engaging in criminal activity.  Again, in respect of these two aggravating features, the judge added a further three months in respect of each.

21.  The third aggravating feature was the judge’s finding that the applicant had committed the theft as a member of a joint enterprise.  She said:

“On the facts which I have found, the defendant committed this offence together with two other persons. They acted together at that time, with one of them distracting the victim while the defendant took the opportunity to steal the phone. Although the acts involved are not particularly sophisticated ones, the way they committed the offence indicated that they must have put their heads together beforehand to devise the scheme and the modus operandi.”

22.  In respect of this aggravating feature, the judge added a further 12 months, making a total sentence of 33 months.

23.  The judge did not see fit to give a reduction of one-third in recognition of the applicant’s plea of guilty, giving instead a lesser reduction of seven months.  This was based on the fact that the applicant had denied the circumstances in which he committed the theft, there being the need therefore to conduct a Newton hearing.

24.  In respect of the second charge, the result was therefore a sentence of 26 months’ imprisonment.

(iii) The third charge (resisting police officers in the execution of their duty)

25.  Given the obstinacy of the resistance (which lasted for approximately a minute) and the fact that both officers sustained injuries, albeit minor, the judge took a starting point of 4½ months in respect of this charge, reducing it by one-third to 3 months in recognition of the plea of guilty.

(iv) Adhering to the totality principle.

26.  Recognising that the total of the sentences, a term of 43 months’ imprisonment, may not be appropriate to the applicant’s overall culpability, the judge reduced the term to one of 33 months.

27.  This was achieved by ordering that 16 months of the sentence of 26 months’ imprisonment imposed in respect of the second charge be served consecutively to the 14 months imposed in respect of the first charge and that the term of three months imposed in respect of the third charge be served wholly consecutively to the first two charges.

The first ground of appeal

28.  On behalf of the applicant, Mr McGowan submitted that the judge erred in coming to the finding in the Newton hearing that the applicant had not committed the theft (the subject of the second charge) alone but had done so together with two others.

29.  There is nothing in this ground.

30.  Both officers testified that their attention was drawn to a group of three men, the applicant being one of the three, because they appeared to be paying “particular attention to passengers’ bags”.  One of the officers testified that at an early stage he witnessed the three exchange words.  There was evidence therefore of the three being under surveillance for a period of time prior to the theft, the surveillance showing that they knew each other and were acting in concert.

31.  It was the evidence of the two officers that, when the three men drew close to the female passenger who herself had moved close to the door in order to alight at the next station, that portion of the carriage was not too crowded.  This was because a large number of passengers had alighted at the previous station.  Both officers were able to testify in detail how the three acted to surround the female passenger standing by the door ready to alight.  While the view of the one officer was partially obstructed, the other officer was able to testify as to the manner in which one of the group acted so as to momentarily distract the woman’s attention enabling the applicant to steal the mobile telephone from her jacket pocket.

32.  The applicant was legally represented.  His counsel put the submission squarely before the judge that the acts described could have been the unconnected, random acts of three strangers.  Accordingly, the judge had before her the very submission which Mr McGowan has advanced before us.

33.  It was for the judge, as the primary finder of fact, to determine whether she could rely on the evidence of the two officers as being both honest and accurate.  In a detailed ruling, the judge set out the evidence and explained why she was satisfied as to its reliability.  Nothing has been put before us to make us doubt that she was in error in coming to that decision.

The second ground of appeal

34.  It was Mr McGowan’s submission that, in respect of the first and second charges of theft, the judge fell into error when determining a starting point (within the guideline range of 12 to 15 months) of 15 months.

35.  Relying on the observations made in R v Chiu Suet Yee, Angel, cited earlier, Mr McGowan submitted that – aside from the aggravating factors which were accounted for later in the judge’s assessment of sentence and were not therefore relevant at this initial stage – there was nothing out of the ordinary in the circumstances of the two thefts warranting a starting point of 15 months.

36.  We do not agree.  In both instances iPhones were stolen, the iPhone that was the subject of the second charge being valued at $4,400. In Chiu Suet Yee, Angel the court, in setting out examples of matters that may be relevant in determining an appropriate starting point, made mention of the value of the property stolen.  iPhones and similar third-generation telephones are not only expensive items, easily sold on and difficult to trace once the SIM cards have been removed, invariably they contain large amounts of data of importance to the owner, data that is both practical and sentimental.  Their theft therefore may well put their owners to a high degree of distress and inconvenience.

37.  In respect of the first charge, Mr McGowan placed particular emphasis on the fact that this charge only arose because, when a second iPhone was found on his person after his arrest, he admitted that he had stolen it earlier that same day.  At the very least, Mr McGowan submitted, this was a mitigatory factor that merited the judge determining a lower starting point than 15 months.

38.  Where an offender surrenders voluntarily to the police and admits an offence which could not otherwise be proved against him, he may be allowed a greater reduction of sentence than would be appropriate in the normal case of a plea of guilty: see, for example, R v Claydon (1994) 15 Cr App R(s) 526. This was a case in which the appellant, having unsuccessfully attempted to rob a newsagent’s shop while wearing a balaclava, but having made good his escape, later surrendered himself to the police.

39.  That being said, if an offender makes an admission to the police at the scene of the crime or at the police station, this constitutes part and parcel of his admission of guilt, albeit at the first available opportunity, and as a mitigating factor is to be subsumed into the one-third discount: see Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471, 477.

40.  In the present case, having arrived in Hong Kong from the Mainland that day and having for all practical purposes being caught red-handed stealing an iPhone, the applicant was found in possession of a second iPhone, one that did not contain personal details relevant to himself but had instead been stripped of its SIM card.  In such circumstances, it is inevitable that the police, in the absence of an admission, would have conducted enquiries, looking not only to the registration number of the telephone but also to data that may have been saved to the telephone itself rather than the SIM card.  In the absence of an admission, this remained a case which could still be proved against the applicant.

41.  Mr McGowan submitted that the applicant’s admission saved the police the time and effort of conducting enquiries which may not in the end result have been conclusive.  That is correct.  The applicant made a timely admission for which he was credited with a one-third discount of sentence.

42.  Accordingly, we are of the view that the judge was entitled to take 15 months as her starting point in respect of both charges.

The third ground of appeal

43.  In respect of the second charge, Mr McGowan accepted that, in accordance with the guidelines laid down in Ngo Van Huy, the judge was obliged to treat the fact that, on her finding, the applicant had acted in concert with two others as an aggravating factor deserving of an enhancement of sentence.  His complaint, however, was as to the level of enhancement, namely, an additional 12 months.  This, he submitted, was manifestly excessive.

44.  In support of his submission, Mr McGowan emphasised two points.  First, although there was evidence that the applicant himself had come from the Mainland that day, there was no evidence that the other two men had themselves entered Hong Kong.  It was as likely as not that they were local people, not members of some ring of thieves who had come to Hong Kong to exploit the rich pickings here.  Second, the judge herself, in passing sentence, recognised that the joint enterprise, although it displayed a degree of planning, was not particularly sophisticated.

45.  The Ngo Van Huy guidelines speak of an increase in sentence when the offender acts in conjunction with others; it speaks of a “substantial” increase when the offender is part of “an organised and professional ring of thieves”.  The guidelines confirm that when the pickpocketing is carried out by members of organised gangs, even if they are not international gangs, a starting point of 30 months’ imprisonment may be appropriate.

46.  As Stock VP pointed out in HKSAR v Chan Mei Yee, Carman [2010] 4 HKC 571, each case must be judged according to its own facts.  Not every case involving more than one offender will merit a starting point of 30 months’ imprisonment.

47.  In our view, an authority of assistance is that of HKSAR v Tan Hong Sheng (unrep., CACC 238/2005), a case in which a gang of three, operating in the immediate vicinity of the Kowloon Star Ferry Pier, stole a mobile telephone from a woman’s handbag.  As in the present case, the gang was seen at work by police.  The court was of the view that a starting point of 30 months’ imprisonment was appropriate, the following aggravating factors having been identified.  First, that the offence was committed in a crowded area where the public was at particular risk.  Second, that the offence was carried out by the gang of three acting in concert.  Third, that there was an international element as the applicant and his co-accused committed the offence the day after they had arrived in Hong Kong from the Mainland.  Fourth, that the offence was organised, well-planned and quite professional.

48.  The present case has a number of similarities.  First, the three men acted in concert to steal a mobile telephone.  Second, they did so on a relatively crowded MTR train where the public are at particular risk.  Third, while it would was the judge’s view that the modus operandi was not particularly sophisticated nevertheless it was effective.  If it had not been for the intervention of the police the gang of three would have been successful.  Fourth, while there was (perhaps) a more limited international element in that the applicant himself had come down from the Mainland that day, joining his two cohorts whose background was unknown, if the two cohorts were locals, a degree of pre-planning would still have been necessary to arrange where they would meet with the applicant and for what purpose.

49.  In the present case the judge imposed a sentence of 33 months: three months higher than the sentence found to be appropriate by this Court in Tan Hong Shen.  In our judgment, the sentence of 33 months was too high.  We are of the view that a sentence of 30 months would also have been appropriate.

50.  As to the appropriateness of the reduction of seven months in recognition of the applicant’s plea of guilty – a reduction of less than one-third – we are satisfied that it was appropriate.  A reduction of one-third is not mandatory in all circumstances in which a plea of guilty is made.  In the present case, while the applicant had pleaded guilty, his denial that he had committed the offence in concert with others went to an issue of central importance in the sentencing exercise.  In the result, for all effective purposes, full evidence had to be led on the part of the prosecution as to the commission of the offence.  There was therefore little if any saving of court time.

51.  As we have indicated, to the extent that the judge adopted a starting point of 33 months rather than 30 months we agree that she fell into error.  However, in light of the fact that the judge, in seeking to achieve an appropriate relativity between totality of sentence and the totality of the applicant’s criminal conduct, reduced the overall sentence by 10 months, we do not consider that it was a material error, that is, one that undermined the appropriateness of the final sentence passed.

The fourth ground of appeal

52.  It was Mr McGowan’s submission that the starting point of 4 ½ months imprisonment adopted by the judge in respect of the third charge, that of resisting police officers in the execution of their duty, was manifestly excessive.

53.  In this regard, he pointed to the fact that the struggle lasted for only about a minute and that the two officers suffered the most minor injuries, no more than some tenderness and minor abrasions.

54.  We do not accept that the applicant’s offence was as relatively inconsequential as Mr McGowan sought to portray it.  The fact is that the applicant, having committed a serious offence, resisted officers attempting to arrest him in the execution of their duty.  As we have said, a passing off-duty police officer had to assist in order to subdue the applicant.  As a result of the applicant’s conduct, the two officers who had alighted from the train in order to effect an arrest both received injuries.  It cannot be said, however, that the injuries were of no consequence.  One officer had to take several days sick leave.  We would add that the applicant’s resistance enabled his two companions to escape.

55.  The approach of our courts in respect of offences of this kind is set out in definitive terms in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, at 758:

“The judge imposed a sentence of one week’s imprisonment for resisting nine officers in the execution of their duty, as a result of which conduct the respondent caused them injuries, even though none seriously. The maximum term for resisting an officer in the execution of his duty is one of two years’ imprisonment. The sentence to be imposed for such cases must carry a heavy deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so. … It suffices to say that in this case, the duty of the offices which they were seeking to execute, was to effect an arrest in a serious case; and the resistance offered was violent, and one which occasioned injury to several of the officers. One week’s imprisonment for that sort of conduct is manifestly inadequate. The correct starting point for the respondent’s conduct was a term of 18 months’ imprisonment.”

56.  In light of that authority, if, for pressing reasons of public policy, sentences in this kind of case must carry a heavy deterrent element, it is difficult to see how it can be said that in the present case a starting point of 4½ months imprisonment was manifestly inadequate.  We consider it to be entirely appropriate.

The fifth ground of appeal

57.  This final ground looked to the overall sentence of 33 months’ imprisonment, it being Mr McGowan’s submission that, while it was difficult to be specific, the court should be left with a sense of concern that the sentence contained a degree of ‘double counting’.

58.  We do not agree that there was any evidence of ‘double counting’.  For the reasons given, we are satisfied that the judge was entitled to take a starting point of 15 months in respect of both the first and second charges.  In respect of those charges, the judge identified particular areas of aggravation, each being independent of the other.

59.  As to the third charge, that of resisting police officers in the execution of their duty, Mr McGowan accepted that in such cases a consecutive sentence is invariably appropriate.

60.  That still leaves the issue, however, of whether, in light of the fact that the judge imposed too high a sentence in respect of the second charge, the totality of the sentence imposed was manifestly excessive.

61.  As we have said, we accept that the judge fell into error in respect of the second charge by imposing a sentence of 26 months’ imprisonment.  That should properly have been a sentence of 23 months’ imprisonment.

62.  That being said, it is to be remembered that, in seeking to achieve an appropriate relativity between the totality of the applicant’s criminal conduct and the totality of the sentences imposed, the judge reduced the term of 43 months imprisonment by 10 months to the final sentence of 33 months imprisonment.  That reduction subsumed the three months that should not have been imposed in respect of the second charge and reduced the final sentence by a further seven months.

Conclusion

63.  The final sentence imposed, that of 33 months’ imprisonment, was stern.  However, for the reasons given we cannot say that it was wrong in principle.  Nor can we say that it was manifestly excessive.  For that reason, the application for leave to appeal was dismissed.