HKSAR v. Tang Kwok Keung and Another

DCCC 839/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 839 OF 2015

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Reasons for Sentence

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1.Both defendants here have pleaded guilty to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Essentially, they are pickpocketing offences. Both are jointly charged with stealing from two separate victims on the same busy shopping street in Kwai Chung only minutes apart.

2.On 4th August this year, at about 9.30 am, two police officers in plainclothes were on patrol on Shing Fong Street, Kwai Chung.  One officer witnessed the 1st defendant put his hand into an open shopping bag belonging to an Indonesian victim.  He took out her wallet and immediately handed it to the 2nd defendant who was stood right behind him.  One officer revealed his police identity which made both defendants turn and run.  Both officers subdued the defendants quickly and arrested them.  This Indonesian victim’s wallet was recovered.

3.At about the same time, PW1, another victim, approached the same police officers and told them she had had her wallet stolen from her bag some minutes earlier.  Her bag had originally been zipped up. After a search in the area, her wallet was found in a dustbin.  Her cash and valuables were missing.  This included two “Seahorse” vouchers or coupons worth $200.  These vouchers were found on the 1st defendant after a search. Both defendants had a substantial amount of cash on them, over $20,000 each.

4.Under caution at the police station, both defendants ultimately admitted the offences. 

5.CCTV of a fruit store on that street where PW1 first discovered her wallet had been stolen showed the 2nd defendant take her wallet from her bag.  At the time, his hand was covered by a newspaper. The 1st defendant was stood closely behind the 2nd defendant.

6.The best mitigation today is both defendants’ plea.  The 1st defendant is 54 years old and a divorced man.  He relies on CSSA.  He is not a man with a clear record, having 26 previous convictions, of which 22 relate to theft.  His last pickpocketing conviction was a District Court case where in September 2013 he was sentenced to 18 months’ imprisonment. 

7.The 2nd defendant is a 53-year-old divorced man who also does not have a clear record.  He has 34 previous convictions, of which 24 relate to theft.  His last pickpocketing offence was dealt with in the District Court in July 2014 where he was sentenced to 22 months’ imprisonment. He was released from that sentence one month before these offences. 

8.Both defendants are professional pickpockets, persistent and repeat offenders.  Both can only be described as recidivists.  Defence counsel has said all he can on their behalf in mitigation. 

9.Prosecution relies on the often-cited authority, HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The Court of Appeal in that authority laid down sentencing guidelines for pickpocketing offences and identified some aggravating factors that will increase a starting point.  Prosecution counsel has also referred me to the authority HKSAR v Xiao Ping CACC 147 of 2012.  That also deals with a pickpocketing sentence as well as the totality principle where more than one offence is involved. 

10.Defence counsel indicated when I referred to the aggravating factors here that the defendants were aware of them and aware that I would take them into account.  The 2nd defendant in particular should be well aware as the appellant in a Court of Appeal case, HKSAR v Tsui Chiu Kwai CACC 452 of 2011.  In that authority, two aggravating factors that exist here were discussed and that sentence upheld.  They include the fact that two offences were committed in a place in which the public was at particular risk, here a busy shopping street where the pedestrian traffic was heavy at the material time.  In addition, the defendants are, as I have said, professional pickpockets and repeat offenders.  The 2nd defendant had only just been released from prison for a similar offence.

11.The last aggravating factor I find that exists is the fact they acted in concert in a pair and not alone.  I take into account a prop was used, namely, a newspaper.

12.In HKSAR v Tsui Chiu Kwai CACC 452 of 2011, the Court of Appeal approved a starting point of 15 months which was increased by 12 months for the defendant’s poor criminal record and repeat offending plus a further 3 months for targeting the victim in a crowded public place. 

13.The courts have said time and time again that deterrent sentences are required for pickpocketing offences to protect the unsuspecting public.  I do not differentiate between the 1st and 2nd defendants here in these two charges.

14.Defendants, please stand up.  Taking the three authorities I have referred to into account as well as the facts of the two offences here and lastly mitigation put forward on behalf of the defendants, I intend to for each charge take firstly a starting point of 15 months which I will increase by 12 months for the defendants’ recidivist behaviour plus a further 3 months for targeting the victims in a crowded shopping street. Lastly, I add a further 3 months for acting in concert that day.  That is a starting point of 33 months’ imprisonment. 

15.Defendants have pleaded guilty.  They are entitled to a discount of one-third.  For Charges 1 and 2, both defendants are sentenced to 22 months’ imprisonment.

16.I have to consider the totality principle and the fact that there are two victims and two offences.  I also take into account that the two offences took place one after the other in a short period of time. Therefore, I will order that 4 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Therefore, both defendants are sentenced to a total term of 26 months’ imprisonment.