HKSAR v. Au Chi Wah

DCCC 832/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 832 OF 2016

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Reasons for Sentence

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Charge and facts

1.On 2 July 2016 at around 4:40 pm, SPC58025 (“PW1”) was on patrol inside the paid area of the concourse of Hung Hom MTR station.  PW1 began to pay close attention to the Defendant, who was furtively tailing some of the passengers and returning.

2.PW1 saw him follow a female on to the escalator towards platform No. 4 for the train. As the train arrived, he covered his left hand with a jacket and took an iPhone 6 ("SP-1") from the handbag the female was carrying on her shoulder. PW1 immediately intercepted and arrested him. He was still holding SP-1 in his hand when he was intercepted. After caution, he said he took the mobile phone belonging to the female due to momentary greed.

Personal background and mitigation

3.The Defendant is 61 years of age, of primary education level.  He was married in Mainland China in 2013 and came to have 2 step-children aged 14 and 16 respectively as a result.  He has been on CSSA since June 2015.   He had 6 convictions for pickpocketing, 25 for theft, and 3 for obtaining property by deception.  The latest conviction for pickpocketing was in 2014. 

4.His solicitor submits on his behalf that the location was not crowded at the time of the offence but he does not want to have a Newton hearing on this issue.  On the present state of evidence, I am prepared to hold that it was crowded, given that it was 4:40 p.m. on a Saturday.     

Sentencing considerations

5.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.  A heavier sentence would be imposed where there were aggravating factors, which included:

(1) The offence committed in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

6.His solicitor also refers me to the pickpocketing case of HKSAR v Wong Kang Sun [2014] 1 HKLRD 622 where an eventual starting point of 24 months was adopted by the Court of Appeal.  An initial starting point of 12 months was aggravating by 9 months due to recidivism and 3 months due to the location being a crowded one at the material time. 

Sentencing the Defendant

7.In the same token as Wong Kang Sun (above), I take a starting point of 24 months.  One-third off for his plea of guilty, his sentence is 16 months in the absence of other mitigating factors.