HKSAR v. Ouali Nasr Eddine and Another

DCCC 625/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 625 OF 2016

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Reasons for Sentence

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1.The defendants have both pleaded guilty to one charge of theft that occurred on 19 May this year in Cameron Road in Tsim Sha Tsui.

2.The essential facts show that this was a case of pickpocketing committed by the two defendants against an Australian tourist, and the offence occurred while they were walking in Cameron Road in Tsim Sha Tsui, and involved the 1st defendant taking money from the rear pocket of the tourist, assisted by the 2nd defendant.

3.The amount of money that was taken by them was €1,195, which had been transferred to the 2nd defendant’s possession at the time.

4.The defendants were arrested at the time of the offence on 19 May, and the money was recovered.

5.The backgrounds of the defendants show that they are both Algerian citizens.  They were here as visitors in Hong Kong.  The 1st defendant is aged 41 and the 2nd defendant is aged 44.  They are both of clear record in Hong Kong.  The 1st defendant was formerly a construction worker and worked in welding construction work, and has three children.  After he lost his employment in December of 2015 he has been attempting a business of trading in mobile phones, and came to Hong Kong in pursuit of that business.  The 2nd defendant also has worked in the past in construction.  He is also a married man with children.

6.Both defendants, in their mitigation, say that the offence was opportunist and was done on the spur of the moment because they could actually see the money in the tourist’s pocket.  They both maintained that they had not come to Hong Kong in order to commit offences of this nature, and that conclusion cannot be drawn from this single incident of theft.

7.As far as the guidelines for this offence are concerned, they can be found in the authority of Ngo Van Huy CACC 107/2004, and that posits a starting point for sentence for a person of clear record convicted after trial that can range between 12 to 15 months’ imprisonment. 

8.There are other factors then which can aggravate that initial starting point and lead to an increase in sentence, and such factors would include that the defendants have acted in concert and have also chosen a high-risk area such as an area crowded with tourists in which to commit the offence.

9.As far as the initial starting point is concerned, this involved a successful taking of money from this tourist.  I will adopt an initial starting point of 15 months’ imprisonment.  The further aggravating factors in this case are that they acted in concert and they committed the offence in a high-risk area.  Each of those lead to a further additional 3 months of sentencing, which is an addition of 6 months added to the original starting point.

10.This means the starting point is now one of 21 months’ imprisonment.

11.I consider the question of whether there is an international element to this offence.  The support for that proposition is that both defendants are from Algeria.  But I do also consider the fact that they are from overseas is not, in itself, sufficient.  There must be something from which the court can draw the conclusion that their purpose for being here was to commit these kind of offences, and I find that cannot be evidenced to a criminal standard merely on one incident without further evidence.

12.The mitigating factor in this case is the defendants’ early plea of guilty.  They are each entitled to a full one‑third discount from the initial 21 months.

13.This leads to a sentence, for the 1st defendant and 2nd defendant, of 14 months’ imprisonment on this offence.