The applicant (Ng Ah Shan) pleaded guilty to four charges of theft before District Judge Sham (the trial judge).  The trial judge sentenced her to imprisonment for 30 months and also ordered her to compensate some of the victims for the loss of their cash money totalling approximately $3,700, such compensation to be paid out of the cash found upon search on the person of the applicant at the time of arrest.
申請人 (吳‍阿‍珊) 在區域法院法官沈‍小‍民 (原審法官)席前承認四項盜竊罪，被判入獄共30 個月。原審法官同時判申請人賠償部分受害人的現金損失，共約3,700 元，並下令賠償金額由申請人被捕時身上搜出的現金中支付。

Represented by Mr Albert Luk of Counsel, the applicant applied for leave to appeal her sentence.  After hearing, we allowed the applicant’s application for leave to appeal sentence and, treating the hearing as the appeal proper, allowed the appeal and reduced the total term of imprisonment from 30 months to 24 months.  We now give reasons for our decision.
申請人不服判刑，由陸‍偉‍雄大律師提出申請，要求獲准就判刑上訴。經聆訊後，本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人上訴得直，並將其總判刑由30 個月減至24 個月。以下是本庭的判案理由。

Facts of the case
案情

About 6:50 pm on the evening of 8 June 2013 and inside City Super Supermarket at Times Square, Causeway Bay, when the victim Ms Chung was preoccupied with shopping and making purchases, the applicant took the opportunity and stole Ms Chung’s purse from the handbag which Ms Chung had placed on the shopping trolley.  The purse had a value of $6,000 and contained Ms Chung’s identity document(s), bank card(s), Octopus card(s) and cash of HK$3,200 and RMB ¥300.  (Charge 1)
2013 年 6 月 8 日晚上約 6 時 50 分，申請人在銅鑼灣時代廣場City Super超級市場內趁受害人鍾‍女士全神選購貨品期間，盜取了她放在購物車上的手袋內，價值6,000 元之錢包，錢包內有鍾‍女士的身份證明文件、銀行卡、八達通卡，現金3,200港‍元及300元人民幣。(第一項控罪)

Around 8 pm of the same day and inside a shop called Candy Magic in a shopping mall in East Point Road, Causeway Bay, the applicant stole a smart phone with cover case, valued at $5,000, which a saleslady Ms Lee had placed on the table next to the cashier counter.  (Charge 2)
同日晚上約 8 時，申請人在銅鑼灣東角道一商場內的Candy Magic店舖盜取了售貨員李‍女士放在收銀處旁枱上的智能電話連套，價值5,000 元。(第二項控罪)

About 10 minutes later, inside a shoe shop in the same shopping mall, the applicant stole a purse from a customer, Ms Choi, who was preoccupied with trying on shoes.  The purse contained articles belonging to Ms Choi, such as her identity document(s), bank card(s), Octopus card(s), and cash of $200.  (Charge 3)
約 10 分鐘後，申請人在同一商場內的一鞋店盜取了正在忙於試鞋的顧客蔡‍女士的錢包，內有她的身份證明文件、銀行卡、八達通卡等物件及現金200 元。(第三‍項控罪)

Around 8:30 pm of the same day, the applicant went to the supermarket inside Sogo Department Store in Causeway Bay where she “shoplifted” by taking goods of a total value of approximately $1,000, including a packet of beef, four packets of cherries, two packets of blueberries, 12 cartons of milk and three boxes of tea, and then leaving the supermarket without paying for those goods.  (Charge 4)
同日晚上約 8 時 30 分，申請人再到銅鑼灣崇光百貨公司內的超級市場“高買”。她拿取了價值約 1,000 元的物品，包括一盒牛肉、4 盒車厘子、兩盒藍莓、12 盒牛奶及3 盒茶後，沒有付款便離開超級市場。(第‍四項控罪)

The applicant’s act of “shoplifting” was uncovered by Mr Shek, a security officer at Sogo Department Store, following which the applicant was arrested.  Subsequently, the police conducted a search and found on the person of the applicant most of the stolen properties belonging to Ms Chung, Ms Lee and Ms Choi.  The police also seized from the person of the applicant cash of approximately HK$8,000, Renminbi ¥510 and some foreign currencies.
申請人的“高買”行為遭崇光百貨公司保安員石‍先生偵破，導致申請人被拘埔。其後警員在申請人身上搜獲鍾‍女士、李‍女士和蔡‍女士被盜取的大部分財物。警員同時檢取了申請人身上的港幣約 8,000 元、人民幣 510 元及其他外幣。

The applicant’s background and grounds of mitigation
申請人的背景及求情理由

The applicant, aged 40, was married in 1997 and divorced in 2006.  She has one son and one daughter, aged 15 and 13 respectively, and their custody has been granted to the applicant’s ex-husband.
申請人40 歲，在1997 年結婚，但在2006 年離婚。申請人育有一對子女，年齡為15 歲及13 歲。該對子女的撫養權由申請人的離婚丈夫所得。

The applicant has 25 criminal records, 24 of which are related to theft offences.  Of the theft-related conviction records, some are for “shop theft” and some “pickpocketing”.  The applicant has been sentenced to imprisonment a number of times for these offences, with the terms of imprisonment ranging from 14 days to 16 months.
申請人有 25 項刑事記錄，其中 24 項和盜竊罪行有關。部分盜竊罪行是“店舖盜竊”，部分是“扒竊”。申請人曾因該些罪行多次被判入獄，刑期由14 天至16 個月不等。

In April 2012, the applicant was sentenced to imprisonment for 16 months for two counts of “pickpocketing” and two counts of “shop theft”.  Soon after she completed serving that sentence and was released from prison, the applicant committed the theft offences in the present case.
申請人在 2012 年 4 月，因兩項“扒竊”罪行和兩項“店舖盜竊”罪行被判入獄16 個月。申請人是在服刑完獲釋後不久，便干犯本案的盜竊罪行。

The applicant claims that she suffers from depression.  In fact, after committing the aforementioned four offences in April 2012, she also put forward depression as mitigation, and in the end the court ordered that the terms of sentence for the said four charges were be run concurrently.
申請人指自己患有抑鬱症。事實上她在2012 年 4 月干犯了上述四項控罪後，亦以患有抑鬱症作為求情理由，結果獲法庭判四項控罪的刑期都同期執行。

Trial judge’s reasons for sentence
原審法官的判刑理由

The trial judge considered that Charges 1 to 3 were “pickpocketing” offences, although on the facts the offences involving Ms Lee and Ms Choi could be described as “walking away with another person’s property”.
原審法官認為第一至第三項控罪都屬“扒竊”罪行，雖然涉及李‍女士和蔡‍女士的罪行在情節上則可視為屬“順手牽羊”的情況。

Applying the sentencing guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the trial judge took the view that 15 months’ imprisonment was the starting point applicable to Charges 1 to Charge 3.  The trial judge further considered that, in light of the applicant’s criminal records, the starting point should be enhanced by 9 months to 24 months.  The trial judge adopted six months’ imprisonment as the starting point for the “shoplifting” offence in Charge 4.
原審法官根據HKSAR v Ngo Van Huy [2005] 2 HKLRD 1案定下的判刑指引，認為適用於第一至第三項控罪的量刑基準是15 個月監禁。原審法官認為以申請人的案底而言，量刑基準應上調9 個月至24 個月。原審法官以6 個月作為第四項“高買”罪的量刑基準。

As the applicant pleaded guilty, the trial judge gave one-third discount to the abovementioned starting points and reduced the sentences to 16 months and 4 months respectively.
因申請人承認控罪，原審法官將上述量刑基準分別扣減三分一至16 個月和4 個月。

The trial judge ordered that 6 months of the 16-month term for Charges 2 and 3, and 2 months of the 4-month term for Charge 4 were to be served consecutively to the 16-month term for Charge 1, resulting in a total term of 30 months.
原審法官下令第二項和第三項控罪的16 個月判刑中的6 個月及第四項控罪的4 個月判刑中的2 個月要和第一項控罪的16 個月刑期分期執行，而得出30 個月的總刑期。

Grounds of appeal
上訴理由

Mr Luk, Counsel for the applicant contended that the trial judge should not have treated Charges 1 to 3 as “pickpocketing” offences and enhanced the starting point to 15 months’ imprisonment.  Mr Luk submitted that what the applicant did only amounted to “walking away with another person’s property”, which means taking away properties belonging to  victim who were momentarily inattentive.  Mr Luk contended that as the offences committed by the applicant were not the same as “pickpocketing”, the trial judge should not have adopted the starting point applicable to “pickpocketing” in determining the applicant’s sentence.
代表申請人的陸‍偉‍雄大律師認為原審法官不應視申請人干犯的第一至第三項控罪為“扒竊”罪行而將量刑基準提升至15 個月監禁。陸‍大律師指申請人的罪行只屬“順手牽羊”，在受害人不為意的情況下盜取他們的財物。陸‍大律師認為申請人干犯的罪行和“扒竊”有別，故原審法官不應採納針對“扒竊”罪行的量刑基準來懲處申請人。

In his written submission, Mr Luk further pointed out that as the applicant committed all the offences within a period of a few hours, all or most of the terms of imprisonment for those offences should run concurrently.  Mr Luk submitted that at least the trial judge should not have ordered that 6 months of the term for Charges 2 and 3 and 2 months of the term for Charge 4 were to run consecutively to the 16-month term for Charge 1, which resulted in what Mr Luk submitted was a manifestly excessive total sentence of 30 months.
在其書面陳詞，陸‍大律師更指申請人是在數小時內干犯全部控罪，因此控罪的全部判刑應同期或大部分同期執行。陸‍大律師認為原審法官最少不應將第二和第三項控罪判刑中的6 個月及第四項控罪判刑中的2 個月要和第一項控罪的16 個月刑期分期執行而得出明顯過重的30 個月總刑期。

Mr Luk also complained that the trial judge was unfair to the applicant in that he ordered the cash found on the person of the applicant to be used to compensate for the victims’ losses but did not grant the applicant any corresponding reduction in sentence.
陸‍大律師亦指原審法官下令將申請人身上搜出的現金用作賠償受害人的損失，但卻沒有因此而給予申請人刑期扣減，對申請人不公平。

Mr Luk contended that, in the absence of evidence or information in support, the judge should not have regarded the cash seized on the person of the applicant as coming from the victims.
陸‍大律師認為原審法官不應視從申請人身上檢獲的現金源自各受害人，原因是沒有證據或資料支持上述看法。

Upon consideration, Mr Luk conceded that there was no difference between the offences under Charges 1 and 3 and the offence of “pickpocketing”.  However, he asserted that Charge 2 was akin to the offence of “walking away with another’s person property” and hence should warrant a shorter term of sentence.   Mr Luk also accepted, albeit with some reluctance, that a reasonable inference was that part of the cash found on the person of the applicant came from the victims.
經探討後，陸‍大律師同意申請人干犯的第一及第三項控罪和“扒竊”罪沒有分別，但力稱第二項控罪較似“順手牽羊”的罪行，故刑期應較短。陸‍大律師亦勉強同意合理的推論是申請人身上搜獲的現金部分源自案件的受害人。

Discussion
討論

The offence of theft encompasses a wide variety of acts of dishonestly stealing properties belonging to others.  Some of the theft offences are more serious whilst some are relatively minor, and therefore the Court of Appeal cannot lay down general sentencing guidelines which apply to all theft offences.  That said, clear sentencing guidelines have been laid down by the Court of Appeal in respect of specific theft offences such as “breach of trust”, “pickpocketing” and “burglary”.
盜竊罪行涵蓋各類不誠實盜取他人財物的行為。有些盜竊罪行較嚴重，有些則較輕微，因此上訴法庭不能就全部盜竊罪行定出整體的判刑指引。但就個別性質的盜竊罪行，例如“違反誠信”、“扒竊”及“入屋犯法”等盜竊罪行，則上訴法庭有明確的判刑指引。

In the case of Ngo Van Huy, the Court of Appeal laid down sentencing guidelines for the offence of “pickpocketing” committed in public places.  According to those guidelines, the appropriate starting point for the offence of “pickpocketing” committed by a first offender in a public place is immediate imprisonment for 12 to 15 months, and the term of imprisonment will be enhanced if aggravating factors are present.
在Ngo Van Huy 案，上訴法庭就在公眾地方干犯的“扒竊”罪行，定下判刑指引。根據該指引，一名初犯者在公眾地方“扒竊”，適當的量刑基準是12-15 個月即時監禁，而如有其他的加重罪責因素，則判刑要向上調。

In paragraph 9 of his judgment, Ma CJHC (as he then was) pointed out that the courts have to adopt a robust approach to sentencing in respect of the offence of “pick-pocketing” because, although the offence does not necessarily cause substantial economic loss to the victim, it will bring upon the victim considerable inconvenience.  Ma CJHC emphasized that those acts which invaded the privacy of others in public places could be carried out very easily.
高等法院首席法官馬‍道‍立 (當時官階)在判案書第 9 段指出法庭要對“扒竊”罪行採納果斷的判刑，原因是“扒竊”罪行雖然不一定導致受害人蒙受嚴重的經濟損失，但卻會對他們造成極大之不便。馬‍法官強調該些在公眾地方侵佔他人私隱的行為亦是十分容易得手。

Mr Luk initially took the stance that the offences committed by the applicant were merely “walking away with another person’s property” as opposed to “pick-pocketing”.  “Walking away with another person’s property” is an analogy used to describe a person taking away another’s property in passing, and its meaning is not completely clear.  If “walking away with another person’s property” is taken to mean that a defendant dishonestly takes away property carelessly left behind by another person or, conveniently seizing the opportunity presented by another person who inadvertently fails to keep his or her property in safe custody, takes that property away, then the offences committed by the applicant in the present case were not “walking away with another person’s property”.  If “walking away with another person’s property” is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately, steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of “walking away with another person’s property” is essentially as serious in nature as the offence of “pickpocketing”.  This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience.  As a matter of logic, we fail to see, for sentencing purposes, any real distinction between the case where the victim carried the wallet on his or her person or inside thebackpack he or she was carrying and the case where the victim placed his or her wallet on the supermarket trolley or on the table or chair close to him or her.  While it might have been easier to steal a wallet placed beside the victim instead of carried on the victim’s person, this can never constitute a reason for passing a lenient sentence.
陸‍大律師原本立場是申請人的罪行只屬“順手牽羊” ，和“扒竊”有別。“順手牽羊”是比喻的說法，來形容順便拿走人家的東西，其含義並非完全明確。假若“順手牽羊”是指一名被告人不誠實地取去他人不慎遺失的財物或在無意間趁他人沒有小心保管他們的財物時，順手取去他們的財物，則申請人在本案所犯的罪行並非是“順手牽羊” 。假若“順手牽羊”是指被告人以受害人的疏忽為目標，故意及有計劃地在受害人不為意的情況下盜取他們放在身邊的錢包或財物,則該類“順手牽羊”罪行根本上和“扒竊”罪行的嚴重性不分伯仲。該類罪行同樣的是在公眾地方干犯，亦有侵犯個人私隱及導致受害人極大之不便。邏輯上而言，本庭看不到受害人的錢包是放在身上或其帶的背袋內和錢包是放在他們附近的超市手推車或枱椅上有任何實質分別，從而會影響判刑。受害人的錢包是放在身旁而非身上，可能令被告人較容易盜取,但該因素絕不構成法庭要輕判的理由。

We notice that different judges of the Court of First Instance have adopted different approaches in dealing with cases of the same type.  Some judges have taken the view that an offence in which the defendant stole property placed inside the clothing hanging on the back of a chair in a restaurant is different from the offence of “pickpocketing” and should therefore be sentenced differently, but some judges have taken the opposite view.  In our opinion, the nature of the offence  should not be affected by whether the victim’s property was, on the one hand, placed inside the clothing or bags next to him or her or, on the other hand, placed inside [the clothing] they were wearing or the bag they were carrying.  As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft offence and the offence of “pick-pocketing” in terms of gravity.
本庭察覺到原訟法庭不同法官在處理同類案件時的取態有所不同。有些法官認為被告人盜取受害人掛在食肆椅背衣物內的財物和“扒竊”罪行不同，判刑亦應有別，但亦有法官持相反意見。本庭認為受害人的財物是放在他們身旁的衣物或包袋和財物是放在他們穿在身上或攜帶在身上的包袋不應影響罪行的本質。只要被告人是故意及有計劃地利用受害人的疏忽來盜取他們放在身邊的財物，被告人的盜竊罪行和“扒竊”罪行的嚴重性是相同的。

We have to emphasize that in the present case it is not that the applicant stole properties left behind by the victims or took properties away in passing when the careless victims were not keeping them in safe custody.  The applicant consciously preyed on the negligence of the victims and, acting with premeditation and deliberately, took the opportunity presented by the victims’ inattention and stole their belongings which were placed beside them, including their purses, which contained not only cash but also the victims’ personal items such as their identity document(s) and bank card(s).  The gravity of the offence committed by the applicant falls squarely within what the Court of Appeal emphasized in Ngo Van Huy.
本庭要強調，申請人並非是盜取受害人遺失的財物或在無意間趁受害人沒有小心保管他們的財物時，順手取去他們的財物。申請人是有意識以受害人的疏忽為目標，故意及有計劃地趁受害人不為意的情況下盜取了她們身邊的財物，包括錢包，而錢包內除了現金外，亦有受害人的身份證明文件、銀行卡等私人財物。申請人罪行的嚴重性正正是上訴法庭在Ngo Van Huy案所強調的。

We agree with the trial judge that, at least in relation to the offences under Charges 1 and 3, the gravity of those offences is the same as that of the offence of “pick-pocketing” and the starting point adopted for the former should also be the same as that for the latter.  Even if the nature of the offence under Charge 2 is slightly different from that of the offence of “pick-pocketing”, the difference is not significant in light of the background of the present case.  The applicant, acting with premeditation and deliberately, seized the moment when Ms Lee was inattentive and took away her mobile phone.  The applicant planned her acts and hunted for targets in public places. She observed that Ms Lee had not been paying attention to her mobile phone and so swiftly took it away.  The degree of gravity of the offence under Charge 2 is similar to that of the offence of “pick-pocketing”.
本庭認同原審法官的立場，至少就第一和第三項控罪所指的罪行而言，其嚴重性和“扒竊”罪行相同而應採納的量刑基準亦應和該類罪行的量刑基準相同。即使第二項控罪性質和“扒竊”罪稍有不同，但以本案的背景而言，分別不大。申請人是故意及有計劃地趁李‍女士一不留神而趁機取去她的手提電話。申請人有計劃行事，在公眾地方搜尋獵物。她觀察到李‍女士沒有關注到她的手提電話時，便迅速地取走其手提電話。第二項控罪的嚴重性和“扒竊”罪行相若。

The applicant repeatedly stole properties belonging to others within a mere two hours.  Her reckless disregard of the law is indeed astonishing.  We are not persuaded by Mr Luk’s submission that the sentences for the four offences should run concurrently as all the offences were committed within a few hours.  If the courts acted in accordance with Mr Luk’s suggestion, this would in effect encourage the commission of multiple offences within a short period of time.
申請人在短短約兩小時內，多次盜取他人財物，其無視法紀的狂妄行為，實在令人震驚。陸‍大律師指因為全部罪行是在數小時內干犯，四項控罪的判刑應全部同期執行的說法不具說服力。假若法庭按陸‍大律師的說法行事，會變相鼓勵罪犯在短時間內多次犯案。

Within  two hours or so on an evening, the applicant thrice stole properties belonging to others, including cash of approximately $3,400 and Renminbi ¥300.  Upon arrest, the applicant had on her person cash of approximately HK$8,000 and Renminibi  ¥510.  This being the case, the inference that the cash on the person of the applicant came from the victims is both reasonable and irresistible.  We do not accept Mr Luk’s submission that the trial judge should not have regarded the cash seized on the person of the applicant as coming from the victims, which submission we consider illogical and by no means convincing.
申請人在晚上約兩小時內三次盜取他人財物，包括現金約3,400 元和人民幣 300 元。被捕時，申請人身上有現金約8,000 港元和510 元人民幣。在上述情況下推論申請人身上的現金源自案件的受害人是合理和無可抗拒的。陸‍大律師原指原審法官不應視申請人身上檢獲的現金源自受害人的說法不合邏輯，更不具任何說服力,本庭不認同。

The trial judge regarded some of the cash seized on the person of the applicant as part of the stolen property subsequently retrieved, and on that basis exercised his discretion not to grant the applicant any reduction in sentence even though restitution had been made to the victims for part of their losses.  On the facts of the present case, we see nothing improper with the trial judge’s approach.  Mr Luk contended that the applicant had at an early stage already intended to make restitution to the victims for their loss in cash.  In our view, given the background of the present case, the applicant had no choice at all.  Whether she was willing or not, the court would certainly order that the cash seized upon her be given to the victims as compensation.
以本案的案情而言，原審法官以申請人身上檢獲的部分現金等同一些被尋回的失物，而因此行使酌情權不以受害人的部分損失獲得償還而給予申請人刑期扣減並無不妥。陸‍大律師力稱申請人早已有打算償還受害人的現金損失。本庭認為以本案的背景而言，申請人根本並無選擇。她願意與否法庭都必會將她身上搜獲的現金賠償給受害人。

The applicant is obviously an incorrigible recidivist.  She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her.  The starting points and sentences imposed by the trial judge for individual charges with reference to Ngo Van Huy are appropriate.
申請人明顯是一名執迷不悟的盜竊慣匪，她多次因盜竊罪而被判監禁。她多次被判的短刑期都不足以阻嚇她。原審法官根據Ngo Van Huy 案而就個別控罪採納的量刑基準及判刑是合適的。

It remains for us to consider whether the total term of 30 months is manifestly excessive.
本庭唯一要考慮的是30 個月的總判刑是否明顯過重。

The applicant has been sentenced to 30 months’ imprisonment on a guilty plea.  This translates to a starting point of almost 4 years.
申請人在認罪下被判入獄30 個月,該刑期等同近4 年的量刑基準。

In our view, for the three counts of “pickpocketing” and one count of “shop theft”, even when the applicant’s criminal records are taken into account, an overall starting point of 3 years sufficiently reflects the gravity of the case.
以三項“扒竊”和一項“店舖盜竊”罪行而言，即使考慮及申請人的犯罪記錄，本庭認為總量刑基準3 年已足以反映案件的嚴重性。

Conclusion
結論

By reason of her guilty plea, the applicant is entitled to one-third discount in sentence.  Her sentence should therefore be 2 years’ imprisonment.
申請人承認控罪，理應獲得三分一的刑期扣減，她的判刑應為2 年。

We have accordingly granted the applicant leave to appeal her sentence and, treating the application as the appeal proper, allowed the appeal.  We have not disturbed the sentences for the individual charges, but have ordered that only 3 months, 3 months and 2 months of the terms for Charges 2, 3 and 4 respectively are to run consecutively to the term of 16 months for Charge 1, and the rest of the sentences are to run concurrently.  The total term of imprisonment of the applicant has been reduced from 30 months to 24 months.
本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直。本庭不會更改個別控罪的判刑，但下令第二、第三和第四項控罪的分別判刑，只需3 個月、3 個月和2 個月要和第一項控罪的16個月判刑分期執行，其餘判刑全部同期執行。申請人的總刑期由30個月減至24個月。

Mr Andrew Li, Senior Public Prosecutor of the Department of Justice, for the respondent
答辯人: 由律政司高級檢控官李希哲代表。

Mr Albert Luk, instructed by Ha and Ho and assigned by the Legal Aid Department, for the applicant
申請人：由法律援助署委派夏峻何偉文律師事務所轉聘大律師陸偉雄代表。