HKSAR v. PHAM NGOC TRINH

CACC439/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 439 OF 2004

(ON APPEAL FROM DCCC NO. 919 OF 2004)

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Before: Hon Ma CJHC & Stock JA in Court

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1. On 27 September 2004, the Applicant was convicted on his own plea of one count of theft (involving pickpocketing) and was sentenced to 30 months’ imprisonment.  He now seeks leave to appeal against sentence.  He was also charged with resisting a police officer in the due execution of his duty but this charge has not been proceeded with and has been ordered to be left on the file.

2. The facts were that the Applicant was spotted by an off-duty police officer on 22 July 2004 in Mongkok (at Sai Yeung Choi Street near Argle Street) pickpocketing a lady’s handbag.  He was seen taking a wallet.  After being intercepted by the police officer, he initially resisted but was eventually overcome with the assistance of another police officer.

3. The Judge took as a starting point a sentence of 30 months and reduced this by one-third to 20 months on account of the guilty plea.  He then made an enhancement of sentence under the Organized and Serious Crimes Ordinance, Cap.455 (“OSCO”) of 50% to arrive at a total sentence of 30 months.

4. In this application, Mr Kevin Chan submits only one ground of appeal.  He argues that the Judge applied too high an enhancement under OSCO.  In line with recent cases of this case being HKSAR v Ngo Van Huy, CACC107/2004; HKSAR v Duong Van Dung, CACC284/2004 and HKSAR v Liao Mei and 2 Others, CACC432/2004, the appropriate enhancement should only be one-third.  Mr David Leung, who appears for the Respondent, agrees.

5. In our view, the starting point of 30 months was entirely appropriate given the fact that the theft took place in a crowded street where pedestrian traffic was heavy and in view of the Applicant’s very poor record.  He can be classified as a persistent offender, having 16 convictions involving 23 charges (7 of which are theft related).  With his plea of guilty, this starting point is reduced to 20 months.  The appropriate enhancement in this particular case is, we agree, one-third and this would make the applicable sentence to 26 months.

6. In the circumstances, we give leave to appeal on sentence, and, treating the hearing of the application as the appeal proper, allow the appeal and accordingly reduce the sentence from 30 months to one of 26 months.

Mr Kevin S K Chan instructed by the Director of Legal Aid for the Applicant

Mr David Leung of the Department of Justice for the Respondent