Hon Yeung VP (giving the reasons of judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

The two appellants (Cheng Xiangrong, Zhou Lingyun) were sentenced to 3 years’ imprisonment after they pleaded guilty to one charge of attempted theft before HH Judge WK Kwok (“the trial judge”) in the District Court.  The trial judge adopted 4½ years as the starting point.  As the appellants pleaded guilty, the sentence was reduced by one third to 3 years.
兩名上訴人（程香榮、周凌雲）在區域法院法官郭偉健（原審法官）席前承認一項企圖盜竊罪後，被判入獄3年。原審法官以4年半為量刑基準，並因上訴人認罪而將刑期扣減三分一至3年。

Aggrieved with the sentence, the appellants applied for leave to appeal against sentence.  On 8 June 2016, a single Justice of Appeal granted leave for their applications.  We are now dealing with their appeals against sentence.
上訴人不服判刑，曾提出上訴許可申請，要求獲准就判刑上訴。2016年6月8日，上訴法庭單一法官批准她們的申請。本庭現要正式處理她們的減刑上訴。

After the hearing, we allowed the two appellants’ appeals and reduced their sentences from 3 years to 32 months.  The following are the reasons for judgment of the Court.
經聆訊後，本庭裁定兩名上訴人的上訴得直，並將她們的刑期由3年減至32個月。以下是本庭的判案理由。

Facts of the case
案情

The crime took place at the Hong Kong Convention and Exhibition Centre (HKCEC) where the Hong Kong Jewellery and Gem Fair was being held at the time.
案發現場是香港會議展覽中心（會展），案發時，正舉行香港珠寶首飾展覽會。

The two appellants registered as trade visitors with passports and business cards, thereby obtaining admission badges for the fair at the HKCEC.  When the two appellants were visiting a booth, they asked the staff to show them some diamonds.  While inspecting a 3.02 carat diamond valued at US$130,000, Cheng Xiangrong used a price list to obstruct the view of the staff whereas Zhou Lingyun tried to substitute a fake diamond for the said diamond worth US$130,000.
兩名上訴人以護照及名片登記為貿易訪客，並因而取得入場證進入會展參觀展覽。兩名上訴人在參觀一展覽亭時向職員表示要看一些鑽石。在檢查一顆3.02卡，價值13萬美元的鑽石時，程香榮以價錢單阻擋職員的視線，而周凌雲則企圖用一顆假鑽石換掉該顆價值13萬美元的鑽石。

When the crime of the two appellants was uncovered by the staff, Zhou Lingyun snatched back the fake diamond and put the said US$130,000 worth diamond back on the table.  Nevertheless, the crime was exposed and the police were involved.  After a report was made, the police arrived at the scene and arrested the two appellants.  The police found two fake diamonds on the chair between the two appellants and on the floor behind Cheng Xiangrong.  The police searched the two appellants and found on Cheng Xiangrong an admission badge registered in the name of “Ng Tiu Chen” (transliteration) and on Zhou Lingyun an admission badge registered in the name of “Wong Lai” (transliteration).  Both Ng Tiu Chen and Wong Lai are mainland residents.  After they obtained the admission badges by dishonest means, they handed them over to others to use in return for RMB 600.
職員發現兩名上訴人的罪行後，周凌雲搶回假鑽石及將該顆價值13萬美元的鑽石放回枱上，但事件仍曝光，導致警員介入。警員接報後抵達現場，拘捕兩名上訴人。警員在兩名上訴人之間的一張椅子及程香榮身後的地上發現兩顆假鑽石。警員搜查兩名上訴人，並在程香榮身上搜出一張以“吳調珍”名字登記的入場證及在周凌雲身上搜出一張以“王麗”名字登記的入場證。王麗和吳調珍都是國內居民，她們是以不誠實手法取得有關入場證後，交了給他人使用，以取得600元人民幣報酬。

The results of a police investigation showed that the two appellants came to Hong Kong at around 3:30 pm on 24 June 2015, namely one day before the crime took place.
警方調查結果顯示兩名上訴人是在2015年6月24日下午約3時半，即犯案前一天進入香港。

Sentence
判刑

This is a crime of extreme gravity.  The two appellants came together to Hong Kong to commit a crime in which they targeted a large-scale jewellery show booth in an attempt to steal a diamond valued at US$130,000.
本案是極為嚴重的罪行。兩名上訴人一起來港犯案，針對大規模珠寶展覽會場的攤位，並企圖盜取價值13萬美元的鑽石。

Apart from the value of the diamond involved and the modus operandi, the present case is serious in that the appellants, acting in concert, came specifically to Hong Kong to commit a crime which is organised and pre-planned.
除了涉案鑽石的價值及犯案手法外，本案嚴重之處是兩名上訴人故意來港共同犯案。而她們的罪行亦是有組織和有計劃的。

The crime the appellants committed is not only serious but also prevalent, so that a heavy sentence is required to have a deterrent effect.  However, it is necessary for the Court to consider the appropriateness of their sentences.
上訴人的罪行不但嚴重，更越趨普遍，必須嚴懲，以收阻嚇作用。但法庭仍需考慮她們的判刑是否恰當。

We have dealt with sentences of similar cases before including the one referred to by the trial judge HKSAR v Tu Xuzhi DCCC1102/2013.  We are of the view that the sentence faced by the two appellants is excessive in comparison with other similar cases.
本庭有審議過同類案件的判刑，包括原審法官援引的HKSAR v Tu Xuzhi DCCC1102/2013。本庭認為兩名上訴人面對的判刑較同類案件的判刑為重。

In HKSAR v Padilla Gerardo Gonzaga & Others CACC275/2011, five visitors coming from the Philippines stole a diamond worth about HK$250,000 when they were attending a jewellery show at the HKCEC.  The Court of Appeal considered the appropriate starting point was 3 years’ imprisonment.
在HKSAR v Padilla Gerardo Gonzaga & Others CACC275/2011案，五名來自菲律賓的訪客在會展參觀珠寶展覽時，成功盜取了一顆價值約25萬港元的鑽石，上訴法庭認為適當的量刑基準為3年監禁。

In HKSAR v Tsogbadrakh Otgon CACC393/2013, 5 Mongolian   visitors came to Hong Kong to commit a crime.  They stole diamonds worth about US$20,000 when they were attending a jewellery show.  The Court of Appeal confirmed a starting point of 4 years.
在HKSAR v Tsogbadrakh Otgon（CACC393/2013）案，五名來自蒙古的訪客來港犯案。他們在參觀珠寶展覽時，成功盜取了價值約20,000美元的鑽石。上訴法庭確認了4年的量刑基準。

In many other similar theft cases, a number of District Court Judges adopted a starting point of about 3 years 6 months to 4 years (see HKSAR v Yang Hao DCCC837/2015, HKSAR v Lau Siu Ping (transliteration) DCCC965/2014, HKSAR v Chau Man Hei (transliteration) DCCC631/2012, HKSAR v Yeung Man Hung (transliteration) and another DCCC955/2014).
在其他多宗同類盜竊案件，區域法院多名法官採納的量刑基準約為3年6個月至4年（見HKSAR v Yang Hao DCCC837/2015、香港特別行政區訴劉小平 DCCC965/2014、香港特別行政區訴周萬喜 DCCC631/2012、香港特別行政區訴陽文紅及另一人 DCCC955/2014等案）。

In HKSAR v Tang Guozhen and Liu Guiluan DCCC364/2015, both defendants were mainlanders who came to Hong Kong together to attend a jewellery show at the HKCEC.  They brought along a fake diamond in an attempt to substitute it for a genuine one worth about HK$980,000 in order to steal the same.
在香港特別行政區訴唐國珍及劉歸鑾 DCCC364/2015案，兩名被告人都是國內人士，她們一起來港前往會展參觀珠寶展覽時，帶同假鑽石，並企圖以偷龍轉鳳的手法，盜取價值約98萬港元的鑽石。

The trial judge considered a starting point of 4 years was not excessive.  However, taking into account the stolen diamond was recovered and the victim did not suffer any loss, the two defendants were sentenced to 3½ years’ imprisonment.
主審法官認為4年的量刑基準並不為過，但考慮到涉案鑽石失而復得，而受害人最終沒有損失，故判處兩名被告人入獄3年半。

In Yeung Man Hung, the two defendants brought along three fake diamonds and attempted to substitute one for a 3.04 carat diamond valued at US$176,000 at a jewellery show.  The trial judge adopted 3 years and 9 months as the starting point.  However, as the case did not involve any cross-border criminal activities and the victim did not suffer any loss, the starting point was adjusted to 3 years and 6 months.
在陽文紅案，兩名被告人攜帶三顆假鑽石，並在參觀珠寶展覽時企圖以假鑽石盜取一顆3.04卡，價值176,000美元的鑽石。原審法官以3年9個月作為量刑基準，但以案件不涉及跨境犯案及事主沒有蒙受損失，而將量刑基準定為3年6個月。

There are striking similarities in the facts between the present case and the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung.  Both cases involved two mainlanders coming to Hong Kong to commit a crime.  They also planned to steal a diamond in the value of about one million Hong Kong dollars at a jewellery show.  As their criminal activities were uncovered, the victim had suffered no loss. However, we should point out that in Yeung Man Hung, the trial judge, in accordance with the prosecution’s stance, had ruled that the case did not involve any cross-border criminal activities.
本案案情和上述唐國珍及劉歸鑾和陽文紅案極為相似。兩宗案件都涉及兩名國內人士來港犯案。她們都是在參觀珠寶展覽時，有計劃地盜取價值約100萬港元的鑽石。但因為她們的犯罪行為被偵破，故受害人沒有蒙受損失。但本庭應指出在陽文紅案，主審法官根據控方立場，裁定案件不涉及跨境犯案。

The trial judge adopted 4½ years as the starting point which was higher in comparison with the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung.
原審法官採納的4年半量刑基準較上述唐國珍及劉歸鑾和陽文紅案所採納的量刑基準為高。

The trial judge took the view that the crime committed by the two appellants was more serious in comparison with Gonzaga and Otgon.  However, despite the diamond the two appellants attempted to steal having a higher value, we do not agree the crime committed by the two appellants is more serious in comparison with Gonzaga and Otgon.
原審法官認為兩名上訴人的罪行較Gonzaga和Otgon案為嚴重。但除了兩名上訴人企圖盜取的鑽石的價值較高外，本庭不同意兩名上訴人的罪行較Gonzaga和Otgon案嚴重。

All three cases involved visitors coming deliberately to Hong Kong to steal valuable property at jewellery shows.  Their crimes were certainly pre-planned and also involved elements such as cross-border criminal activities and several persons acting in concert.
三宗案件都涉及訪客故意來港在珠寶展覽盜取貴重財物，他們的罪行必然是有計劃，亦同樣涉及跨境犯罪和多人同謀犯罪等元素。

The trial judge stressed that the two appellants obtained two admission badges of the fair before they came to Hong Kong, which showed their intent to steal and there were accomplices helping to get the admission badges for them.
原審法官強調兩名上訴人來港前已取得兩張展覽入場證，顯示她們是有意圖盜竊，亦顯示有同黨替她們取得入場證。

However, in Gonzaga and Otgon, both cases involved visitors coming deliberately to Hong Kong to commit offences which were pre-planned involving elements of cross-border criminal activities.  Moreover, in Gonzaga and Otgon, there were five defendants acting in concert and the number of criminals involved was more in comparison with the present case.
但Gonzaga 和Otgon案亦是涉及訪客故意來港犯案，亦是有計劃及涉及跨境犯案等因素，而Gonzaga 和Otgon案更涉及五名被告人一同犯案，竊匪數目較本案為多。

Furthermore, as the stolen items in those two cases were not recovered, the victims suffered substantial economic losses, whereas the victim in the present case did not suffer any loss.
再者，該兩宗案件，涉案的財物未能追回，故受害人蒙受極大經濟損失。在本案，受害人沒有任何損失。

Mr Leung Man Liang Matthew, Senior Public Prosecutor for the respondent, stressed that the diamond involved was worth US$130,000.  He agreed that the starting point of 4½ years adopted by the trial judge was on the high side, but it was not manifestly excessive and therefore we should not interfere.
代表答辯人的高級檢控官梁文亮強調，涉案的鑽石價值13萬美元。雖然他同意原審法官採納的4年半量刑基準屬高，但認為該量刑基準並非明顯過高，故本庭不應干預。

The value of the diamond involved is certainly a factor to be considered when it comes to sentencing.  If a defendant steals specifically diamonds of considerable value and asks the staff to show him diamonds of very high value with intent to steal the same, it is certainly an aggravating factor.  However, on many occasions, in other similar cases, the value of the diamonds the defendants intended to steal were only picked incidentally or randomly.  In the present case, there is no sufficient evidence to suggest that the two appellants were targeting those diamonds of extremely high value.  The facts of the case showed that they just randomly asked the staff to show them three diamonds with intent to steal one of them when inspecting the same.
涉案鑽石的價值當然是判刑時要考慮的因素之一。如被告人特意盜取價值甚高的鑽石，並要求職員向他展示某些價值特高的鑽石，目的是盜取該鑽石，這必然是加重罪責因素。但很多時，在同類案件，被告人企圖盜取的鑽石的價值只是隨機或偶然的。在本案沒有足夠證據顯示兩名上訴人是故意針對價值極高的鑽石。案情顯示她們只是隨機要求職員向她們展示三顆鑽石，並在檢視過程中企圖盜取其中一顆。

The trial judge pointed out in Tu Xuzhi, the criminal also stole a diamond valued at US$124,000 at a jewellery show, and the court adopted 4½ years as a starting point.
原審法官指出在Tu Xuzhi案，犯案人亦是在珠寶展覽會偷取了一顆價值124,000美元的鑽石，而法庭採納的量刑基準為4年半。

Even though the above starting point of 4½ years was appropriate, the trial judge had overlooked the fact that the US$124,000 worth diamond was not recovered.
即使上述4年半的量刑基準恰當，但原審法官忽視 了在該案，涉案價值124,000美元的鑽石未能追回。

Although the sentence for attempted theft may not necessarily be lighter than that of a completed offence of theft, for offences of stealing, whether there is economic loss and the extent of economic loss suffered by the victims are certainly factors to be considered at the time of sentencing.  In the above case of Yeung Man Hung, the trial judge also took the view that the victim suffered no loss of property was a mitigating factor favourable to the defendant.
雖然企圖盜竊罪行的判刑不一定較已完成盜竊罪行的判刑為輕，但在任何盜竊案件，受害人是否有經濟損失及經濟損失的幅度都必然是判刑時需考慮的因素。在上述陽文紅案，主審法官亦認定事主沒有財物損失一事是對被告人有利的求情因素。

In the present case, we should not overlook the fact that there is no evidence to suggest the two appellants were targeting a diamond of considerable value, nor can we overlook the fact that the appellants’ attempt to steal the diamond was not successful, thereby causing no economic loss to the victim.
在本案，法庭不應忽視沒有證據顯示兩名上訴人是故意以價值甚高的鑽石為她們盜竊罪行的標的物，亦不能忽視兩名上訴人未能成功盜取到涉案鑽石，故受害人沒有蒙受任何經濟損失。

Having regard to the overall circumstances of the case, we are of the view that the starting point of 4½ years adopted by the trial judge was manifestly excessive.  We consider a starting point of 4 years sufficiently reflects the gravity of the offence committed by the two appellants.  In fact, in respect of theft, if the amount involved is around one to three million dollars, even if a breach of trust is involved, the starting point is only 3 to 4 years’ imprisonment (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776).  The 4 years starting point adopted by this Court has already reflected the gravity of this particularly serious offence of stealing jewels at a jewellery show.
本庭認為以整體案情而言，原審法官採納的4年半量刑基準屬明顯過高。本庭認為4年的量刑基準已足以反映兩名上訴人的罪責。事實上，以盜竊罪行而言，如案件涉及款項是100萬元至300萬元，即使有違反誠信的情況，量刑基準亦只是3-4年監禁（見HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776案）。本庭採納的4年量刑基準，已反映在珠寶展覽會盜取珠寶首飾這類罪行的特殊嚴重性。

In our view, for similar cases, a starting point of four years sufficiently reflects the gravity of this type of offences unless there are special aggravating factors, such as the defendant targets some particularly or extremely valuable property; the victim suffers substantial economic loss; the theft involves very large-scale criminal activities with highly elaborate planning.  For the convenience of the sentencing judge, the prosecution should, according to the circumstances, submit as much evidence related to the above factors as possible for the court’s consideration.
本庭認為，在同類案件，除非有特殊的加重罪責因素，例如被告人特意盜取某些特殊或價值極高的財物；受害人蒙受極大的經濟損失；盜竊行動是極大規模或涉及極為周詳的計劃等，否則四年的量刑基準已足以反映該類罪行的嚴重性。為方便法官量刑，控方應根據情況盡量提供和上述因素有關證據予法庭考慮。

The two appellants pleaded guilty to the charge.  Therefore, they are entitled to a discount of one third.  The proper sentence for them should be 32 months.  Accordingly, we allow their appeal and reduce their sentences from 3 years to 32 months.
兩名上訴人承認控罪，故理應取得三分一的刑期扣減。她們的恰當判刑應為32個月。因此，本庭裁定兩名上訴人上訴得直，並將她們被判的刑期由3年減為32個月。

由律政司高級檢控官梁文亮代表。	The 1st Appellant, acting in person, present
答辯人：

無律師代表，親自應訊。	The 2nd Appellant, acting in person, present
第一上訴人：

無律師代表，親自應訊。	Leung Man Liang Matthew, Senior Public Prosecutor of the Department of Justice, for the Respondent
第二上訴人：