HKSAR v. CHAN FEI LUNG

CACC 134/2021 [2022] HKCA 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO. 134 OF 2021 (ON APPEAL FROM DCCC NO. 1118 OF 2020) ____

BETWEEN

HKSAR Respondent and CHAN Fei-lung (陳飛龍) Appellant ____ Before: Hon Zervos JA and Anthea Pang JA in Court Date of Hearing: 22 September 2022 Date of Judgment: 22 September 2022 Date of Reasons for Judgment: 16 November 2022 ____

R E A S O N S F O R J U D G M E N T ____ Hon Anthea Pang JA (giving the Reasons for Judgment of the Court): Introduction The appellant was convicted upon his own plea by Judge K Lo (“the judge”) sitting in the District Court of one count of “theft” (“pickpocketing”) laid jointly against him and one Chang Kwong-yiu (“D2”). On 26 April 2021, the judge sentenced the appellant to 22 months’ imprisonment and ordered 7 months to run concurrently with the sentence of 23 months which the appellant was then serving in relation to two other pickpocketing offences in DCCC 397/2020. On 5 May 2022, leave was granted to the appellant to appeal against sentence out of time. At the conclusion of the appeal hearing, we allowed the appeal and ordered that 15 months, instead of 7 months, were to run concurrently with the sentence in DCCC 397/2020. With the activation of the suspended term of 3 months ordered by the sentencing judge in DCCC 397/2020, the appellant is to serve 33 months in total. We indicated at the hearing that we would give our reasons in due course. This we now do. Facts admitted by the appellant On 24 September 2020, a woman police constable saw the appellant and D2 acting furtively inside Pei Ho Street Market. Later, they approached a lady aged 73 (“PW1”) from behind and stood by her side, swapping positions from time to time. Having waited for a while, the

appellant quickly got close to PW1 and took a wallet away from her pocket. He then walked away hurriedly with D2. The appellant and D2 were intercepted by police officers outside the Market. Upon search, PW1’s wallet, containing $353.40 cash, one elderly Octopus card, some keys and some membership cards, was found on the appellant. Under caution, the appellant admitted the offence and said he had no money and asked for a chance. The appellant’s mitigation and background The appellant was 60 years old at the time of sentence. He was unemployed and lived on CSSA in the amount of HK$2,000 per month. It was submitted that the appellant committed the present offence because of financial difficulties. The appellant had 31 previous criminal records involving 38 charges (25 of them were dishonesty related, including 14 pickpocketing convictions), dating back to 1981. He was last sentenced on 7 January 2021 to a total of 23 months’ imprisonment for attempted theft and theft in DCCC 397/2020. On that occasion, the sentencing judge also activated 3 months out of a 4-month suspended term in respect of a non-theft related offence and ordered that to run consecutively to the sentence imposed in DCCC 397/2020. Reasons for sentence In sentencing, the judge considered that the appellant was an “incorrigible recidivist pickpocketer” and, by repeatedly committing pickpocketing offences preying on

elderly people, he was “a menace and a threat to the society”. The judge was also of the view that the sentence imposed in the past had not been able to deter the appellant from reoffending. When deciding on the starting point, the judge referred to HKSAR v Ng Ah Shan and enhanced the initial starting point of 15 months by 9 months for the appellant’s poor criminal record. Since the appellant acted in concert with D2, the starting point was further enhanced to 29 months. Finally, as the appellant committed the present offence whilst he was on bail for DCCC 397/2020, there was another enhancement of 4 months. In the end, the overall starting point was one of 33 months’ imprisonment. The appellant was given the full one-third discount for his guilty plea and was sentenced to 22 months’ imprisonment with 7 months to run concurrently with the sentence in DCCC 397/2020. Grounds of appeal Mr Bruce Tse, counsel for the appellant, advanced two grounds of appeal: Ground 1: the judge failed to give proper regard to the totality principle in the following respects: the judge did not approach the sentence as if the two cases had been heard together; the judge did not indicate what her starting point would have been, had the two cases been heard together; and the judge did not give specific indications as to how her approach to totality had operated to reduce the overall length of the

sentence she had originally considered appropriate. Ground 2: the ultimate overall sentence is manifestly excessive in all the circumstances. The appellant’s submissions Mr Tse argues in respect of Ground 1(i) that the judge’s consideration of the totality principle was wholly inadequate. Relying on The Queen v Tong Hoi-fung, he contends that the correct approach would be to regard the two cases as having been heard together and to look at the totality principle on that basis. In respect of Ground 1(ii), Mr Tse relies on R v Tsang Chiu Man and submits that the judge should have indicated the global starting point had she considered the two cases together. It is submitted that while the present case and DCCC 397/2020 comprise three offences of pickpocketing in total, similar aggravating features highlighted by the judge had already been addressed by the sentencing judge in DCCC 397/2020. In respect of Ground 1(iii), Mr Tse highlights that the combined notional starting point for the present case and DCCC 397/2020 was an unprecedented 57 months’ imprisonment. Even taking into account the poor criminal record of the appellant, the totality was in the region of 4 times the normal starting point of 12 to 15 months for first-time pickpocketing offenders after trial. In respect of Ground 2 which is a general ground, Mr Tse submits that the notional starting point of 57 months’

imprisonment does not sit comfortably with the actual culpability of the appellant’s three pickpocketing offences. Mr Tse further relies on Dang Van Tuan, HKSAR v Chan Mei Yee Carman and HKSAR v Lam Yee Fu in which the original sentences were reduced on appeal as the court considered them manifestly excessive even for recidivist pickpocketers, to substantiate his complaint that the sentence is manifestly excessive in all the circumstances of this case. The respondent’s submissions Mr Beney Wong, for the respondent, suggests that although the judge did not identify the global starting point, the omission is not fatal because the question is ultimately whether the overall sentence of 38 months, or the overall starting point of 57 months, is wrong in principle or manifestly excessive. It is submitted that in view of the context in which the three offences took place, that is, on three different victims, using the same modus operandi, spaced by 7 months, with the offence in the present case being committed while the appellant was on bail for the previous two offences, as well as all the aggravating features pertinent to the two cases, an overall starting point of 57 months is not manifestly excessive. Mr Wong further suggests that each offence clearly added to the criminality of the other. Relying on HKSAR v Brian Alfred Hall, he argues that a substantially consecutive sentence is

warranted and justified. Mr Wong lastly points out that realistically speaking, the appellant was just ordered to serve 15 months for a crime that deserved punishment of 22 months’ imprisonment. In respect of Ground 2, Mr Wong highlights that absent the 4-month enhancement owing to the appellant’s committing the present offence whilst on bail, the 29-month enhanced starting point adopted by the judge was lower than those featured in the authorities relied on by the appellant. As such, it is suggested that no valid complaint can be made of the enhanced starting point. Discussion This case involved what is generally described as a pickpocketing offence. For this type of offence, guidelines have been set down by the Court of Appeal in HKSAR v Ngo Van Huy. Ma CJHC (as he then was), when giving the judgment in Ngo Van Huy, in which he suggested that 12 to 15 months’ imprisonment, barring any aggravating features, would be appropriate for a first time offender after trial, added that an aggravating feature would be where “the accused is a repeat offender or, worse still, a persistent one” and he observed at paragraph 9(5): “…Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where

this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him: see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at pp.833-834. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence… .” There is no dispute between the parties that the guidelines in Ngo Van Huy are applicable in this case. There is also no dispute that the appellant could properly be described as a persistent and repeat offender, both judging from his criminal record and from the way he committed the present offence and those in DCCC 397/2020 – repeat offending and committing the offence whilst on bail. Further, although the enhancement resulted in a final starting point of 33 months, which was 18 months (or 120%) over and above the initial starting point of 15 months adopted by the judge, there is not much criticism from Mr Tse as to the extent of the enhancement based on the appellant’s repeat offending, joint enterprise and offending whilst on bail. Essentially, the only disagreement between the parties is whether the totality principle had been correctly applied in the present case, and whether the final term of 38 months, upon pleading guilty, for the

three offences in the two sets of proceedings was manifestly excessive. In addressing this question of totality, we find it worth repeating what Stock VP (as he then was) said in HKSAR v Ngai Yiu-ching: “22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”: R v K M [2004] NSWCCA 65 at para. 55. … 27. For the sake of completeness we should refer to the multiple offence scenario that involves offences, different in nature or the same, committed on quite separate occasions. In that situation the court will invariably have concluded that, in principle, it may impose consecutive sentences. But the court still needs to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle. Only by doing so will it be able to arrive at a sentence that is fair to the offender yet also properly reflects the culpability of his conduct.” In short, the totality principle requires that even if consecutive sentences may, in principle, be imposed when the court is dealing with

different offences committed on different occasions, the court, in a given case, would need to stand back and examine, on the one hand, what is fair to the offender, and on the other hand, what is the appropriate term given his overall culpability. There is no formula and the final assessment would be one of the proportionality of the sentence. In Tong Hoi-fung where the applicant was sentenced to 6 years for an armed robbery which was ordered to run consecutively to a sentence of 5 years which had been imposed on him earlier on, Barker JA observed: “Mr. Forrest realistically said that he could not possibly complain of the sentence of six years per se imposed on the applicant for this offence nor could he complain of the sentence of five years imposed by Addison, J. almost a year before per se. The burden of Mr. Forrest’s argument is that nevertheless looking at the matter in its totality a total sentence of eleven years is too high. … Mr. Forrest urges us to approach this matter as if the two cases had been heard together and look on that basis at the totality of the sentence. That is an approach we think is correct and, viewing the matter in that light, we are of the view that the totality of eleven years’ imprisonment is excessive.” (emphasis added) Likewise, Mr Tse does not suggest that the 22 months in the present case per se is wrong. His complaint is that the judge

should have approached the matter “as if the two cases had been heard together and look on that basis at the totality of the sentence.” Mr Tse submits that if the judge had done so, she would have realised that the notional sentence for the three offences would be one of 38 months upon a plea of guilty or that the notional global starting point would be one of 57 months (if only 7 months were to run concurrently with the 23 months in DCCC 397/2020). Approaching the two cases as if they were heard together, the first observation we make is that the sentencing judge, when imposing the 23 months in DCCC 397/2020 on the appellant, had already taken on board similar aggravating features identified by the judge. If the two cases had been “heard together”, the question of enhancement based on the aggravating features would no doubt have been addressed in one go and would not have been factored in separately in the two sets of proceedings. Therefore, if the sentences for the three offences were to run wholly or largely consecutively, the enhancement might feature rather predominantly, with the result that the final sentence would be disproportionate to the overall culpability of the appellant in the two cases and might result in unfairness. Our other observation is that the three pickpocketing offences did not involve any large syndicate or sophisticated means. Therefore, although they

were committed by a recidivist with a co-accused and although he was on bail when committing the offences in this case, a notional starting point of 58 months for these three relatively straight-forward pickpocketing cases would seem not only to be on the high side but manifestly excessive. In fact, we were informed that neither party was able to locate any authority in which a starting point close to this term had been adopted in the past. Conclusion For the reasons given above, we agree with Mr Tse that the judge had not properly applied the totality principle when ordering a largely consecutive sentence. We allowed the appeal against sentence but would not upset the term of 22 months imposed on the appellant upon his plea. However, in our view, the correct totality is to order 15 months, instead of 7 months, to run concurrently with the sentence in DCCC 397/2020, making an overall term of 30 months for the three offences. This overall term should have sufficiently reflected the appellant’s culpability in the three offences and the aggravating features, and should at the same time be a sentence fair to him. For the avoidance of doubt, with the adjustment we ordered and with the suspended term of 3 months activated by the sentencing judge in DCCC 397/2020, the appellant is to serve a total of 33 months’ imprisonment. (Kevin Zervos) (Anthea Pang) Justice of Appeal Justice of Appeal Mr Beney Wong Chi-wai, SADPP, of the Department of Justice, for the Respondent Mr Bruce Tse Chee-ho, instructed by M/s Boase Cohen & Collins, assigned by the Director of Legal Aid, for the Appellant