HKSAR v. CHAN WAI SING

DCCC174/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 174 OF 2012

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HKSAR
v.
Chan Wai-sing

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Before: Deputy District Judge H F Woo

Date: 25 April 2012 at 11.49 am

Present: Mr William Siu, SPP (Acting) of the Department of Justice, for HKSAR
Mr Warren Louis Tang, instructed by Messrs Or & Lau, assigned by the Director of Legal Aid, for the Defendant

Offence: Theft (盜竊罪)

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Reasons for Sentence

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The charge

1. The defendant pleaded guilty to a count of theft, under section 9 of the Theft Ordinance, Cap.210. Such offence was in the nature of pickpocketing.

The Facts

2. The facts of the case can be summarised as follows.

3. At 5.40 pm on 27 January 2012, PC4001 (“PW2”) was conducting anti-pickpocket patrol in Sai Yeung Choi Street near Dundas Street,Mongkok. He saw the defendant acting furtively. At the material time, the streets were crowded with heavy pedestrian traffic.

4. At 5.43 pm on the same day, PW2 saw the defendant following a female, who was using her mobile phone (Exhibit P1) whilst walkingalong Dundas Street. Having used exhibit P1, the female put it into her right front jacket pocket. PW2 then saw the defendant insertinghis right hand into the female’s right front jacket pocket and then taking out a mobile phone therefrom.

5. Having done so, the defendant turned around and left quickly towards Sai Yeung Choi Street. PW2 pointed at the defendant and askedhis colleague PC58426 to follow the defendant. The police then intercepted the defendant outside the Hong Kong Jockey Club at M/F,Nathan Centre, No.580 Nathan Road.

6. At this time, the defendant was holding a mobile phone which was later confirmed by the said female to be her property. The defendantwas arrested and cautioned. It was found that he had with him HK$20,415.60 and Renminbi$11 at the time of arrest. The value ofexhibit P1 is about HK$5,000.

The defendant’s background

7. The defendant aged 36 was a labourer. As early as in 1987 and at the age of 12, the defendant had his first conviction of theft. In the subsequent 24 years, the defendant had been to the Magistrates’ Courts and District Court on 19 occasions, relating tosome 33 offences. Of these offences 26 were dishonesty related, including four pickpocketing convictions.

8. He is obviously a repeat and professional offender and had been in and out of prison on numerous occasions, ranging from 4 monthsto 24 months. His last conviction was in June 2010, whereupon he was sentenced to a total sentence of 24 months’ imprisonmentfor two theft charges. He was then released on 30 September 2011.

9. Within four months time, he again committed the present offence of pickpocketing. Apart from pleading guilty to the offence, thiscourt sees no remorse at all from the defendant. There was nothing much the defence counsel could mitigate on his behalf.

Sentencing guidelines

10. The Court of Appeal in HKSAR v Ngo Van Huy CACC107/2004 remarked that:

(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases,the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it canbe effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adversereputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one whichattracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12 to 15 months after trial is therefore appropriate for a first time offender and this is an immediatecustodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features included:-

(a) The presence or use of a weapon…

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or theracecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher…

(d) Where the accused is a repeat offender or, worse still, a persistent one…

Initial starting point

11. The Court of Appeal, in HKSAR v Chiu Suet Yee, Angel CACC105/2010, held that:

“In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting,that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.”

There was nothing unusual in the circumstances of the case and this court is prepared to adopt an initial starting point of 12 months’imprisonment.

Aggravating factor

12. The aggravating features that the offence was committed in crowded public areas and that the defendant is a habitual offender ofthe same kind of offence would however, justified the court to impose a higher sentence. In respect of the latter feature, the Courtof Appeal in Ngo’s case said that:

“the defendant was a repeated offender, or a persistent one, where there were repeat offences of the same kind, the defendant’sprevious record was likely to be an aggravating feature where this demonstrated in particular either the need to impose a deterrentsentence (the previous ones not having apparently had this effect) or the need to protect society from criminals like him. Wherea poor previous record for similar offences existed, a court would be justified in imposing a substantially higher sentence.”

Taking into account of the appalling previous record for dishonesty and pickpocketing offences into consideration, and an enhancementof 6 months’ imprisonment would be appropriate. The facts that the offence was committed in a crowded public area would warranta further enhancement of 3 months’ imprisonment.

Final starting point

13. Having considered all the circumstances of the case, including the criminality of the offence and culpability of the defendant andthe guidelines set out by the Court of Appeal, this court would adopt a final starting point of sentence for 21 months’ imprisonment. Such sentence would be reduced by one-third for the defendant’s guilty plea to 14 months’ imprisonment.

14. This court now orders a 14 months’ imprisonment.

H F Woo
Deputy District Judge