HKSAR v. Wong Kai Chun

DCCC 121/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 121 OF 2016

-----------------

------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to one charge of theft, contrary to the Theft Ordinance.

2.This is a pickpocketing case.  The facts are that on 15 April 2014, the victim was shopping at about 7 pm on a street in Kwun Tong.  This street is full of food shops and crowded at that time of evening with people buying groceries.  The victim was a 61 year old lady who carried her shopping bag over her shoulder with her wallet in it. As she was selecting food at a shop, she felt her bag being tampered with.  She immediately turned and looked and saw that her wallet was missing from her bag.  She also saw that both the defendant and the defendant's daughter were stood very close to her.  She saw them then turn to leave; walking quickly. She suspected that they had stolen her wallet and followed them.  She stopped them further down the street and confronted them.  Both the defendant and her daughter denied stealing the victim's wallet.  They said the victim could search them. 

3.The victim found her wallet hidden inside the left sleeve of the defendant's garment.  She found that the $2,500 cash in her wallet was missing.  The defendant's daughter took out $1,000 and offered it to the victim as compensation.  The victim refused and told the defendant and her daughter she would call the Police.  They both attempted to leave and there was a struggle between the three of them.  The defendant's daughter called somebody on her mobile phone.  Not long after this three unknown men emerged and surrounded the victim.  They swore and intimidated the victim, their behaviour allowed the defendant and her daughter to get away.  The whole incident was caught on video by a passer-by. 

4.At some stage after, the defendant's daughter was arrested but the defendant remained a wanted person.  The defendant's daughter was convicted of the same charge in 2014 in the District Court.  The defendant herself was not arrested until 1 January 2016 during a stop by Police officers. 

5.The defendant's daughter at her trial was convicted and a 30 month starting point was deemed appropriate.  Several aggravating factors were found to exist and increased the starting point to that level of 30 months.

6.The defendant's best mitigation today is her plea of guilty.  From her criminal record it is clear that the defendant is a professional pickpocket.  She has appeared in court on 20 occasions and been convicted of 28 dishonest offences, almost all are pickpocketing offences.  The defendant's last six court appearances were all in the District Court, all for pickpocketing offences.  These six appearances start in 2004 and end in 2012. 

7.Mr Chan has said all he can in mitigation on the defendant's behalf.  The defendant is now 61 years old, divorced with four children.  I am told she is suffering from ill health but there is nothing before me to substantiate those claims.  What I have heard is not worthy of leniency for health issues. 

8.There are sentencing guidelines for pickpocketing offences. These guidelines were set out by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The guidelines were reiterated in HKSAR v Chan Mei Yee, Carman, CACC447/2009.  The guideline from the Court of Appeal is that a 12 to 15 month starting point after trial would be appropriate for a first time offender.  However, the Court of Appeal says that if aggravating factors exist the starting point will increase.  That last authority sets out possible aggravating factors the court can take into account.  What would be relevant here is, firstly, the fact that the offence was committed in a crowded shopping area where the pedestrian traffic is heavy.  Secondly, the defendant is a repeat offender, a recidivist. Thirdly, the offender acted in concert with other members of a gang or syndicate.  Here the others involved with the defendant and her daughter intimidated the victim when the victim caught them red-handed. 

9.Defendant, please stand up.  To come to an appropriate starting point I have considered mitigation put forward, your plea of guilty, the facts of the case, the authorities I have just referred to, as well as the three aggravating factors I identified.  After considering all these factors, I take a starting point firstly of 18 months.  I will increase that starting point by 4 months for the first aggravating factor, committing the offence in a crowded shopping area.  I then add a further 5 months to that starting point for the defendant's recidivism.  Lastly, I add a further 6 months to that starting point for the fact the defendant did not act alone and others came out to assist the defendant to escape from the victim. Therefore, the starting point I take will be one of 33 months' imprisonment.

10.You have pleaded guilty, you are entitled to a discount of one-third.  After that discount is applied, for this offence you are sentenced to 1 year and 10 months' imprisonment.