HKSAR v. TAN HONG SHENG

CACC 238/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 238 OF 2005

(ON APPEAL FROM DCCC NO. 104 OF 2005)

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J U D G M E N T

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1. The applicant, who was D2 at trial, together with D1 and D3, faced a charge of theft before Deputy Judge Mierczak in the District Court.  D1 pleaded guilty and the applicant and D3 were convicted on 12 May 2005 after trial.  The applicant was sentenced to imprisonment for two years and six months.

2. The applicant now seeks leave to appeal against both conviction and sentence. 

3. The prosecution’s evidence can be briefly stated as follows.  At about 9:10pm on 27 December 2004, police officers on anti-theft operation in the vicinity of the Star Ferry pier, Kowloon observed a pickpocketing incident in which the applicant, D1 and D3 took part.  D3 stood closely to the victim so that she could not change direction.  The applicant used his hand to hold the handbag of the victim steady while D1 opened the zipper of the victim’s handbag and removed from it a mobile phone. 

4. PW1, a woman police officer, gave evidence as to the acts of the three defendants.  PW2, a male police officer, told the court his observations of the acts of D1 and D2.  The judge found these witnesses honest and believable and accepted their evidence. 

5. D1 had pleaded guilty to the offence.  D2 and D3 gave evidence and called D1 as their witness.  Their evidence was to the effect that they were visitors in Hong Kong and were sightseeing at the material time.  The place was very crowded and they were walking closely together as they did not want to lose each other.  D1 said that when he saw the victim with the handbag, presenting an easy target, he had the sudden impulse and committed the theft.  Both D2 and D3 said that they were shocked by what D1 did and they took no part in the theft.

6. The judge rejected the defence evidence.  He found all the three defendants unimpressive in the witness box.  In particular, he found that D1 was clearly trying to tailor his evidence to not only minimise his involvement but to help exonerate his friends, D2 and D3.

7. The grounds of appeal against conviction written by the applicant in his notice of application are that his conviction was purely based on the unilateral allegations of PW1 and PW2, that there was no fingerprint evidence, and that no photographs had been taken of the event as evidence.

8. This Court has said on many occasions that it is unnecessary to have any particular kind of evidence to support a conviction, insofar as the evidence adduced is sufficient for the court to find the accused guilty beyond a reasonable doubt.  Oral testimony of witnesses, if accepted as truthful and reliable, can be sufficient.  The judge had the advantage of observing the witnesses when they gave evidence before him, which this Court does not have.  The applicant has not been able to show me anything that can give rise to any doubt that the trial was not conducted fairly and in accordance with the proper procedure.  The judge had carefully evaluated the evidence to come to his conclusion. 

9. The applicant claims that he was prejudiced at the trial because he was not legally represented.  Had he retained a private lawyer to act for him, so he contends, the result would have been different.  This is utterly without substance.  It is true that the applicant appeared in person at the trial.  In his Reasons for Verdict, the judge had specifically mentioned this fact.  He had advised the applicant every now and then, whenever necessary, of the proper procedure to be followed.  There is not the slightest doubt that the judge was fully apprised of the situation and had ensured that no unfairness was caused to the applicant.

10. Moreover, the applicant applied for legal aid on 2 February 2005 but withdrew his application on 15 February 2005.  The lack of legal representation was clearly the choice of the applicant.

11. In the circumstances, I am of the view that an appeal against conviction is unarguable.  Therefore I refuse to grant leave.

12. Now I come to sentence.  In his Reasons for Sentence, the judge took into account the guidelines set by this Court regarding sentence on pickpocketing.  In the normal circumstances, a starting point of 12 to 15 months would be appropriate, which sentence should be increased if there are elements of aggravation.  

13. The judge took into account that the place where the offence was committed is a well-known crowded area in which the public is at particular risk, that the offence was carried out by the three defendants jointly, that an international dimension was involved in that the three defendants had come to Hong Kong from the Mainland and committed the offence on the second day of their stay here, and that the offence wasorganised, well-planned and quite professional. 

14. Ms Evena Chan, for the respondent, has reminded me of the case of HKSAR v Ngo Van Huy [2005] 2 HKRD 1, the sentencing guideline case on pickpocketing.  Considering that judgment carefully, I find that there is nothing wrong in principle about the sentence of 30 months’ imprisonment passed by the judge on the applicant.  All the aggravating features of the offence, as mentioned by the judge, are valid.  The sentence is in my view, not manifestly excessive.

15. In the circumstances, I also refuse leave to appeal against sentence.

16. I advise the applicant that he may make a fresh application within 14 days to this Court.  However, I warn him that if the court that deals with the fresh application comes to the view that it has no merit, the court may order a loss of time he has spent in custody to be taken away from the counting of his service of the imprisonment, and that the court can increase sentence.