HKSAR v. SUEN PING

CACC 217/2023 [2024] HKCA 630 On appeal from [2023] HKDC 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 217 OF 2023 (ON APPEAL FROM DCCC NO 680 OF 2023) ___

HKSAR Respondent v Suen Ping (孫平) Applicant ___ Before: Hon Zervos JA in Court Date of Hearing: 10 July 2024 Date of Judgment: 10 July 2024 ____

J U D G M E N T ____ This case came before me as an application for bail pending appeal against sentence but as the parties had filed the necessary papers for leave to appeal against sentence it was agreed that I should also deal with the leave application. On 22 November 2023, following the applicant’s conviction on his own plea of two charges of theft (pickpocketing) before District Court Judge E Lin (the judge), he was sentenced to a total of 33 months’ imprisonment. The summary of facts The first charge occurred in the afternoon of 24 January 2023 when the applicant stole a mobile telephone, an octopus card and a credit card from the pocket of a shopper in a vegetable store. The incident was captured on CCTV (Charge 1). The second charge occurred in the afternoon of 19 March 2023 when the applicant stole a mobile telephone and a telephone case from the open bag of a shopper at a wet market. The applicant fled but was apprehended, and the shopper’s property was found in his possession. When the applicant committed the second charge, he was on bail for the first charge, which was granted on 25 February 2023 in the High Court after it had been refused upon his arrest for the first charge on 30 January 2023 (Charge 2). The reasons for sentence The judge referred to the sentencing guideline case for pickpocketing of HKSAR v Ngo Van Huy , which provided a guideline

sentence of 12 to 15 months’ imprisonment after trial for a first-time offender. He noted that the applicant had committed the first offence shortly after he had been released from prison, having served a sentence of 16 months’ imprisonment following his conviction for pickpocketing on 9 August 2020. He adopted a starting point of 32 months’ imprisonment for both charges, which he reduced by one third to 21 months’ imprisonment for the applicant’s guilty plea. The judge then enhanced the notional sentence by 12 months to 33 months’ imprisonment for four aggravating factors (three months for each factor): (1) the applicant was a repeat offender (he was 65 years with 74 prior convictions, half of which were dishonesty related); (2) the offences were committed in a crowded place; (3) the second offence was committed shortly after he had been granted bail; and (4) the offences were committed within a very short period. The grounds of appeal On 1 December 2023, the applicant applied for leave to appeal against his sentence. In the perfected grounds of appeal filed on 18 April 2024, it is complained that the judge adopted an exceptionally high starting point of 32 months which was outside the usual range of 12 to 15 months (Ground 1); the judge reduced the one third discount for the guilty plea from the initial starting point and then added 12 months for the aggravating factors, when

he should have reduced the one third discount from an addition of the initial starting point and the aggravating factors (Ground 2); and the resultant sentence of 33 months’ imprisonment was manifestly excessive and represented a starting point of about 50 months’ imprisonment after trial (Ground 3). Leave to appeal against sentence granted The judge took a global approach when sentencing the applicant for the two theft charges. The sentence is on the high side, but the issue is whether it is manifestly excessive. It is acknowledged that if the judge had sentenced the applicant for each offence and followed the usual sentencing approach, the resultant sentence may have been less than the one he received. The correct approach when determining an appropriate and just sentence involves adopting a starting point, taking into account the accused’s role and culpability; enhancing the starting point for any aggravating factors, bearing in mind the totality of the additional enhancements; reducing the notional starting point for mitigating factors, including a discount for a guilty plea; and applying the totality principle for the multiple offences by ordering the sentences to be served consecutively or concurrently in arriving at a total sentence that reflects the total criminality of an accused. It is submitted that the judge should have addressed the charge that was first in time,

Charge 1, by adopting a starting point of at least 15 months, as the applicant was not a first-time offender. He should have enhanced the starting point for the applicable aggravating factors, making sure that the total enhancements were not unduly excessive. The aggravating factors applicable to Charge 1 were the targeting of a victim in a crowded area; and the applicant’s previous numerous convictions for the same or similar offences. The additional aggravating factor not identified by the judge was that the theft involved stealing the victim’s mobile telephone, which was not recovered and would have caused the victim considerable inconvenience and disruption to her daily life. The notional starting point would then be discounted by one third discount for the applicant’s guilty plea. As for Charge 2, the judge would have adopted a starting point of at least 15 months, which he would have enhanced, as he indicated, for the following aggravating factors, targeting a victim in a crowded place; committing the offence whilst on court bail and within a short period after the first offence; and the applicant’s previous numerous convictions for the same or similar offences. Even though he stole a mobile telephone, this did not amount to an aggravating factor as the mobile telephone had been recovered after he was apprehended trying to flee from the scene. The notional starting point

would then have been discounted by one third for the applicant’s guilty plea. The next phase of the sentencing process involved the application of the totality principle to the two sentences. Mr Victor Lee, for the applicant, has acknowledged that if the judge had taken the correct approach in sentencing the applicant, he would have probably received a total sentence at about 28 months’ imprisonment. I accept that even though the applicant’s wrongdoing is very serious, particularly given that he is a bad recidivist who has shown no respect for the law, the grounds of appeal against sentence are reasonably arguable as there is merit in the submission that the sentence in the circumstances may be regarded as excessive. I grant the applicant leave to appeal against his sentence. Bail pending appeal refused The next question is whether the applicant should be granted bail pending appeal. An appellate court may grant bail pending appeal if it is just to do so. It is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”). In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.

In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success. Whilst I have granted leave to the applicant to appeal against his sentence, I do not consider that even if he is successful in showing that the judge erred by imposing an excessive sentence, it would not be by a great amount. He was sentenced on 22 November 2023 and in the circumstances of his case, he is likely to serve a sentence that would keep him in prison custody for a period within which his appeal would be heard, even allowing for the one third remission for good behaviour. I am informed that the applicant’s discharge date is 14 December 2024. Accordingly, I will direct that the applicant’s appeal against sentence be expedited. The application for bail pending appeal is refused. (Kevin Zervos) Justice of Appeal Ms Lilian Tang, SPP (Ag), of the Department of Justice, for the respondent Mr Victor Lee, instructed by Director of Legal Aid, for the applicant