Hon Barnes J (giving the reasons for judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：

Background
背景

The three appellants were jointly charged with one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  The 3rd appellant was additionally charged with one count of theft, contrary to section 9 of the Theft Ordinance.
三名上訴人一同被控一項「企圖盜竊罪」，違反香港法例第210 章《盜竊罪條例》第9 條及第200 章《刑事罪行條例》第159G 條。第三上訴人另被控一項「盜竊罪」，違反上述《盜竊罪條例》第9 條。

They pleaded not guilty to the charges and the case was heard before Deputy District Judge Lin, who convicted all the three of them of attempted theft and also convicted the 3rd appellant of theft.
三名上訴人否認控罪，案件在區域法院暫委法官練‍錦‍鴻席前審訊。練‍法官裁定三名上訴人就「企圖盜竊罪」罪名成立，另第三上訴人亦就「盜竊罪」罪名成立。

For attempted theft, the Deputy Judge sentenced each appellant to 26 months’ imprisonment.  For the theft charge, he sentenced the 3rd appellant to two months’ imprisonment, which was to be served concurrently with the 26 months for attempted theft, so the total sentence was still 26 months.
就「企圖盜竊罪」，練‍法官判處每名上訴人26 個月監禁。就「盜竊罪」，練‍法官判處第三上訴人監禁兩個月，與「企圖盜竊罪」的26 個月刑期同期執行，合共仍為26 個月。

All three appellants applied for leave to appeal against sentence.  Leave was granted by the Honourable Mr. Justice Yeung VP on 31 August 2012 to the three appellants to appeal against their sentences.  The 3rd appellant applied for leave to appeal against conviction as well, but was refused by Yeung VP.
三名上訴人均就判刑提出上訴許可申請。上訴庭副庭長楊‍振‍權於2012 年8 月31 日批准三名上訴人就刑罰提出的上訴許可申請 (第三上訴人另就定罪提出上訴許可申請，但被楊‍法官駁回)。

Facts
案情

The facts were that on the day in question, a police constable, who had just finished an anti-pickpocket operation and was about to go off duty, saw the three appellants hanging around outside Pioneer Centre, Nathan Road, Mongkok and paying their attention to the backpacks and handbags of the pedestrians.  He then tailed behind them and called for assistance through his beat radio.
案情顯示在案發當日，一名剛完成「反扒竊行動」，正準備下班的警員目睹三名上訴人在旺角彌敦道始創中心外徘徊及留意行人的背囊、手袋。警員遂尾隨三人，並以對講機要求同事支援。

The constable followed the three appellants to reach Sai Yeung Choi Street, Mongkok.  The 3rd appellant signalled to the 1st appellant by pointing to a shop.  The 1st appellant nodded and entered the shop.  At that time a female shopper was selecting garments.  The 1st appellant stood beside her, picked up a garment with one hand and at the same time put the other hand into the handbag which the shopper was carrying, but after a very short moment she withdrew her hand.  At that moment, the 2nd appellant went into the shop and stood behind the shopper.  He held a corner of the garment which the 1st appellant was holding in her hand and then he raised his hand, thus lifting up part of the garment.  The 1st appellant made use of this opportunity and put her hand into the shopper’s handbag again, but she drew back her hand immediately.  Then, the 1st and the 2nd appellants left the shop and joined the 3rd appellant, who was outside the shop.  The 3rd appellant shook her head to the 1st appellant, who, likewise, shook her head to the 3rd appellant.  The evidence showed that the shopper’s bag was in fact a carrier bag.  The shopper put her personal property in the bottom of the bag, and the top of her personal property was covered by a plastic bag with some sundry items inside.  This explained why the 1st appellant put her hand into the bag twice but failed to get anything.
警員尾隨三人至旺角西洋菜街。第三上訴人向第一上訴人指向一商舖，第一上訴人點頭及進入該店舖。當時有一名女顧客正在挑選衣服。第一上訴人站在該顧客身旁，拿起一件衣服，同時用另一隻手伸入該顧客攜帶的手袋，但很快便縮回手。此時，第二上訴人亦進入店舖，站在該顧客身後，把第一上訴人手提起的衣服其中一角拉起，第一上訴人趁機再伸手入該顧客的手袋，但亦隨即縮手。第一及第二上訴人便離開店舖，與在店舖外的第三上訴人會合。第三上訴人向第一上訴人做出一搖頭動作，而第一上訴人亦向第三上訴人作出搖頭動作。證供顯示該顧客的手袋其實是個手抽。女客人將個人財物放在手抽底部，上面蓋了另一個裝有個人雜物的膠袋，故此第一上訴人兩次伸手入袋都無功而回。

The activities of the three appellants were witnessed by the policemen who were on duty nearby.  Subsequently, they were arrested outside the MTR station on Prince Edward Road by the policemen.
三名上訴人的行徑已被在附近值班的警員目睹，其後警員在太子道地鐵站外將她們三人拘捕。

The police found a personal Octopus card on the 3rd appellant.  The holder of the card was a girl student, who lost the card sometime between 5 to 6 p.m. on the same day when she was riding the MTR.  The Deputy Judge found that the 3rd appellant, with dishonest intent, retained the Octopus card in her possession.
警員在第三上訴人身上搜到一張個人八達通卡，卡主是一名女學生，她在同日下午約5 時許乘搭地鐵時失去該八達通卡。練‍法官裁定第三上訴人在有不誠實企圖下管有該張八達通卡。

Reasons for sentence
判刑理由

The Deputy Judge considered the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and took into account the aggravating features mentioned therein.  In addition, the Deputy Judge referred to a recent case, HKSAR v Chan Mei Yee, Carman [2010] 4 HKC 571.  He said that in Chan Mei Yee the Court of Appeal had found that a starting point of 30 months was not excessive, where the case happened in a crowded area and at the time of the offence the defendant was a repeat offender.
練‍法官在量刑時考慮了上訴庭在HKSAR v Ngo Van Huy [2005] 2 HKLRD 1一案訂下的量刑指引，同時考慮了在該案提及的加刑因素。練‍法官另考慮了一宗新近的案例：香港特別行政區訴陳美儀 [2010] 4 HKC 571。練‍法官指在陳美儀一案上訴庭指案件在人多之處發生，及犯案時是重犯，以30 個月為量刑起點並不為過。

The Deputy Judge was of the view that this case happened in a public place, and that even though there were not a large number of pedestrians at the material time, the commission of the offence in this well-known shopping area in Mongkok was an aggravating feature.  The Deputy Judge did not classify the case as one involving an element of international crime gang despite the fact that both the 1st and the 2nd appellants were residents of the Mainland.
練‍法官認為本案發生在公眾場所，雖然當時行人不多，但在旺角此著名購物區犯案是加刑因素。雖然第一及第二上訴人均為內地居民，練‍法官在量刑時並無將案件列為涉及國際犯罪集團的案件。

In sentencing, the Deputy Judge had regard to the fact that the three appellants were deaf-mutes, their clear records and their personal backgrounds (The 1st appellant was 40 years old. She was separated and lived with her six year old daughter and aged parents.  She was dependent on the money provided by her ex-husband.  The 2nd appellant was 43 years old and was provided for by her parents.  Besides being a deaf-mute, he has also some problems with his eyesight.  The 3rd appellant was 45 years old.  She lived with her husband, whose hearing was also defective, and her nine year old son.  She lived on CSSA.).
練‍法官在量刑時考慮了三名上訴人都是聾啞人士、三人都無刑事紀錄、及她們三人的個人背景 (第一上訴人年40 歲，分了居，與6 歲女兒及年邁父母同住，以前夫提供的金錢維生；第二上訴人年43 歲，靠父母供養，他除了聾啞外，視力亦有問題；第三上訴人45 歲，與同是聽力有問題的丈夫及一名9 歲兒子同住，靠綜援為生)。

The Deputy Judge used 28 months as the starting point and, having taken into account the fact that they were all handicapped persons, and that furthermore, the 1st and the 2nd appellants were Mainlanders, who would encounter more difficulties during their incarceration in a correctional institution than people without disabilities would, decided to exercise his discretion to reduce it by two months, thereby arriving at the sentence of 26 months’ imprisonment.
練‍法官以28 個月為量刑起點。考慮到她們都是有殘障人士，而第一及第二上訴人更是內地人，拘押在懲教署時遇到的困難會較沒有殘障的人為多，因此決定行使酌情權，減免兩個月，而達致26 個月監禁此刑期。

As for the theft charge of which the 3rd appellant was convicted, the Deputy Judge considered that the facts were similar to those of a case of
就第三上訴人被裁定罪名成立的「盜竊罪」，練‍法官認為案情與「拾遺不報」案件類同，在考慮了第三上訴人已就其他控罪被判入獄，遂判處第三上訴人入獄兩個月，但與「企圖盜竊罪」的26 個月監禁同期執行。

“appropriation of lost property”.  In view of the fact that the 3rd appellant had already been sentenced to prison for the other offence, he sentenced her to two months’ imprisonment, which was to be served concurrently with the 26 months’ imprisonment for attempted theft.
上訴理由

Grounds of appeal
第一上訴人

1st appellant
第一上訴人並無書面陳詞。她向本庭表示她知錯，希望可以減刑。

The 1st appellant did not prepare any written submission.  She told this court that she regretted for what she had done and hoped that her sentence could be reduced.
第二上訴人

2nd appellant
第二上訴人向本庭提交一封信件。他重申他除了聾啞外，視力亦有問題。基本上他亦是希望可以減刑。

The 2nd appellant submitted a letter to this court.  He reiterated that apart from being unable to speak or hear, he was having trouble with his eyesight.  Basically, he also hoped that his sentence could be reduced.
第三上訴人

3rd appellant
第三上訴人沿用她先前已呈交的書面陳詞。基本上她指她是無辜的。她知道第一及第二上訴人已知錯，但她本人是無辜的，因此她不甘心坐冤獄，希望可獲得減刑。

The 3rd appellant adopted the written submission which was filed earlier on.  What she essentially said was that she was innocent.  She knew that the 1st and the 2nd appellants regretted for what they had done, but she said that she was innocent and that she could not reconcile herself to the fate of having to be unjustly sent to prison.  She hoped that her sentence could be reduced.
答辯人回應

Respondent’s reply
答辯人代表署理高級助理刑事檢控專員譚‍思‍樂指以28 個月為量刑起點可能是較重，但非明顯過重，況且練‍法官亦已將刑期減至26 個月，刑期並非過份嚴苛。

Mr. Tam, Acting Senior Assistant Director of Public Prosecutions, for the respondent, submitted that the starting point of 28 months might be at the high end of the range but was not manifestly excessive, that the Deputy Judge had already reduced it to 26 months, and that therefore the sentences were not too severe.
本庭所作的考慮

Our considerations
就扒竊案件，上訴庭在Ngo Van Huy一案已訂下量刑指引。簡而言之，上訴庭指一名初犯者的基本量刑起點是12至15 個月即時監禁。但若案件涉及下列加重刑罰因素，則法庭可因應情況而加刑。加重刑罰因素包括犯案時犯案者曾使用武器或利器、罪行在人擠的地方 (如地鐵、馬場、購物區) 發生、犯案者與其他黨羽共同行事、案件涉及有組織的扒竊集團——尤其是從外國來港犯案的扒竊集團，等等。

Sentencing guidelines for pickpocketing cases were laid down by the Court of Appeal in Ngo Van Huy.  Putting it briefly, the Court of Appeal held that the basic starting point for a first time offender was 12 to 15 months’ immediate imprisonment, and that if there were any aggravating features, a higher sentence could be imposed according to the circumstances.  Aggravating features include the use of a weapon or a sharp object by the offender during the commission of the offence; the offence was committed in a crowded place (e.g. the MTR, the racecourse or a crowded shopping area); the offender acted in concert with other members of his gang; the case involved an organized ring of pickpockets — in particular a ring of pickpockets coming to Hong Kong from overseas to commit crimes; and so on.
在陳美儀 一案，犯案人28 歲，有多項犯案紀錄，其中最少11 項與盜竊有關。犯案日期是最近一次坐牢後出獄不久。犯案的情況是犯案人與一名同黨在旺角一繁忙街道尾隨受害人，同黨開了雨傘在受害人背後身邊站著，犯案人則手持傳單遮擋著受害人的背囊，成功拉開拉鍊約8 吋，伸手入背囊內。此時，一直監視犯案人及其同黨的警員現身，採取行動，其中一名警長捉著犯案人的手，將兩人拘捕。原審法官以2½ 年為量刑起點，因犯案人案底纍纍，加刑9 個月，判犯案人監禁39 個月。

In Chan Mei Yee, the offender was 28 years old and had a lengthy record of criminal convictions, of which no fewer than 11 were related to theft.  The day she committed the offence was not long after her release from imprisonment for her last offence.  The offence in that case took place in the following circumstances:  The offender and an accomplice followed their victim in a busy street in Mongkok.  The accomplice unfurled an umbrella, standing behind and near the victim, while the offender had in her hand a flyer which she used to cover the backpack of the victim.  She opened the zip by about eight inches and inserted her hand into the backpack.  At this juncture the policemen, who had been watching the offender and her accomplice, came out and took action.  A sergeant grabbed hold of the offender’s hand and both persons were arrested.  The trial judge used 2½ years as the starting point, to which he added nine months on account of the appalling record of the offender, making a total of 39 months’ imprisonment.
上訴庭考慮了Ngo Van Huy 及分析一連串有關扒竊的案件 (包括HKSAR v Tan Hong Sheng [2006] HKCU 938, R v Saldana Alca Jose & Anor [1997] HKCU 103, HKSAR v Duong Van Dung [2004] HKCU 1386, HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Liao Mei & Ors [2005] HKCU 17，等等)。

The Court of Appeal considered Ngo Van Huy and analyzed a number of cases about pickpocketing (including HKSAR v Tan Hong Sheng [2006] HKCU 938, R v Saldana Alca Jose & Anor [1997] HKCU 103, HKSAR v Duong Van Dung [2004] HKCU 1386, HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Liao Mei & Ors [2005] HKCU 17, etc.).
上訴庭指出並非所有涉及多於一人的扒竊案件的量刑起點都是2½ 年監禁。在考慮了案情後，上訴庭認為該案在考慮其他求情因素前，不應已達致2½ 年的監禁。上訴庭認為應先因應「企圖盜竊」此案情而達致15 個月量刑起點，然後考慮加刑因素。考慮了案件在繁忙的街道發生、犯案者與他人共同行事及其先前眾多的犯案紀錄，上訴庭指總刑期2½ 年是恰當的。因此判令上訴得直，將刑期由39 個月減至30 個月。

The Court of Appeal pointed out that not all pickpocketing cases involving more than one offender warranted a starting point of 2½ years’ imprisonment.  Having gone through the facts of the case, the Court of Appeal held the view that the starting point of 2½ years’ imprisonment should not have been taken before considering other factors.  The Court of Appeal remarked that one should commence with a starting point of 15 months’ imprisonment on the basis of the facts of the attempted theft charge in question, and then address the aggravating features.  Taking into account the fact that the offence took place in a busy street, that the offender acted in concert with another person and the offender’s many previous criminal convictions, the Court of Appeal found that an overall sentence of 2½ years was appropriate.  Accordingly, the appeal was allowed and the sentence was reduced from 39 months to 30 months.
練‍法官在判刑時特別考慮了陳美儀 案件。練‍法官認為三名上訴人共同行事，在著名購物區犯案是加刑因素。練‍法官並無以第一及第二上訴人特別來港犯案作為加刑因素。練‍法官在考慮了三人均無刑事紀錄後，認為28 個月量刑起點是恰當的。

In sentencing the appellants, the Deputy Judge specifically considered Chan Mei Yee.  He regarded the fact that the appellants acted in concert and that the offence took place in a well-known shopping area as aggravating features.  He did not treat the fact that the 1st and the 2nd appellants came to Hong Kong specifically for the purpose of committing crimes as an aggravating feature.  Having taking into account the clear record of the appellants, he concluded that a starting point of 28 months was appropriate.
本庭認為以三名上訴人都是初犯者，基本量刑起點應是15 個月監禁。他們三人共同行事，在著名購物區犯案，是加刑因素，但他們並非計劃周詳，而且當時購物區並非人群擠擁，此等情況應列入考慮之列。以練‍法官採納的28 個月看來，加刑幅度是13 個月監禁 (28 個月 - 15 個月)，本庭認為以本案所有情況而言，是過份嚴苛。本庭認為考慮了有關加刑因素後，量刑起點應是21 個月。

In our judgment, since the three appellants were first time offenders, one should start off with a starting point of 15 months’ imprisonment.  The three of them acted in concert and committed the offences in a well-known shopping area.  These were aggravating features.  However, their operation was not well planned, nor was the shopping area crowded at the material time.  These factors should have been taken into consideration.  The 28 months adopted by the Deputy Judge meant that the sentence was increased by 13 months (28 months — 15 months).  We find that in all the circumstances of this case it was too severe.  After considering the aggravating features, we hold that the starting point should be 21 months.
就「拾遺不報」此盜竊罪，本庭認同兩個月此監禁刑期是恰當的。

As for the theft charge concerning “appropriation of lost property”, we agree that the term of two months was appropriate.
就練‍法官以三人都是聾啞人士而減刑兩個月，本庭認為以本案所有情況而言，酌情減刑兩個月亦是恰當的處理方法。

The Deputy Judge reduced the sentences by two months for the reason that the three appellants were deaf-mutes.  We hold that in all the circumstances of this case, the two months reduction of the sentences was a correct exercise of his discretion.
三名上訴人就「企圖盜竊罪」的恰當刑期應是19 個月監禁。

The appropriate sentence for each of the three appellants in respect of the attempted theft charge should be 19 months’ imprisonment.
第三上訴人另外干犯的「盜竊罪」，性質與「企圖盜竊罪」不同，亦不可說是「同一事件」，刑期理應分期執行，不應同期執行。在考慮了整體刑期原則後，恰當的總刑期應是20 個月的監禁。

The nature of the theft charge which the 3rd appellant additionally committed was different from that of attempted theft, and it cannot be said to be belonging to the same incident; therefore, the sentence for which should be served consecutively, not concurrently.  After considering the totality principle, we hold that the appropriate total sentence should be 20 months’ imprisonment.
基於上述理由，三名上訴人上訴得直。

For the above reasons, we allow the appeal lodged by the three appellants.
就「企圖盜竊罪」

Attempted theft
三名上訴人各自的26 個月監禁刑期撤銷，改判19 個月監禁。

The 26 months’ imprisonment imposed on each of the three appellants are set aside and replaced by 19 months’ imprisonment.
就「盜竊罪」

Theft
第三上訴人被判處的兩個月刑期不變，但其中1 個月須與「企圖盜竊罪」的19 個月監禁分期執行，總刑期為20 個月。

The two months’ imprisonment to which the 3rd appellant was sentenced stands, but one month of which shall run consecutively to the 19 months for the attempted theft.  The total sentence is 20 months.
答辯人：由律政司署理高級助理刑事檢控專員譚思樂代表

The 1st to the 3rd Appellants, acting in person, present
香港特別行政區

Mr. Isaac Tam, Acting Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR
上訴人：三名上訴人無律師代表，親自出庭應訊