HKSAR v. Cheng Wai Leung

DCCC 474/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 474 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance. The particulars of this offence are that the defendant pickpocketed a smartphone from the pocket of the victim on 9 April 2016 at about 7.15 pm, On Kwong Wa Street, Mongkok. This is indisputably one of the busiest districts in Hong Kong.

2.The facts of this case are that several off-duty police officers were meeting in Mongkok for dinner.  One particular WPC, who was very vigilant and should be praised for her powers of observation, spotted the defendant and the 2nd defendant of this case scouting out a potential victim or target.  This woman police officer knew from their behaviour they were potentially pickpockets.

3.The 2nd defendant was jointly charged with the 1st defendant, but the prosecution offered no evidence against her as part of a plea bargain.  Despite her good fortune, it does not mean I will ignore the fact that according to the facts agreed, the 1st defendant did not act alone here.

4.This WPC watched the 1st defendant and his accomplice D2 follow the victim into McDonald’s and queue behind her.  They then left the McDonald’s shortly after and waited outside.  When this victim herself came out of the fast-food restaurant, the defendant and his accomplice followed her.  They both walked arm in arm behind her.  By then, this WPC had asked for colleagues to assist her. They followed the defendant and the accomplice. 

5.Within minutes of following the victim, the defendant put his hand into the victim’s pocket and took out her mobile phone.  The defendant then passed the phone immediately to his accomplice.  They both then walked away from the victim and of course were immediately intercepted by the police.

6.The defendant under caution admitted the offence.  He told the police he stole the phone because he was in financial difficulty. 

7.The whole action was caught on CCTV camera belonging to an estate agency on the street.  The CCTV footage captures the 1st defendant putting his hand into the victim’s pocket whilst walking directly behind her.  The defendant was caught red-handed.

8.The defendant’s best mitigation is his plea of guilty.  Mr Wu has said all he can on his behalf.

9.The defendant is not a man with a clear record. He is in fact a persistent offender or a recidivist.  In fact, the defendant has 34 criminal convictions, of which 20 relate to theft offences and 8 to actual pickpocketing offences.  The defendant’s last conviction was in 2012, a pickpocketing offence dealt with in the District Court.  After a plea, the defendant was sentenced to 18 months’ imprisonment.  In that case, he was jointly charged with his wife.  Clearly, this plus the other many terms of imprisonment have not had any deterrent effect on the defendant. 

10.I can see from that previous District Court conviction the starting point was enhanced for several reasons.  A starting point of 15 months was taken according to the authority of HKSAR v Ngo Van Huy CACC 107 of 2004.  That starting point was enhanced by a further 9 months because of the aggravating factor of the defendant being a persistent offender.  Lastly, a further 3 months was added to that starting point because there was a joint enterprise, more than one pickpocket.  Therefore, after the discount was applied for the defendant’s plea, that term of imprisonment was one of 18 months.

11.Pickpocketing is a nuisance and a very annoying offence for victims.  They must be deterred.  As I have said, clearly, the defendant here is not deterred by lengthy terms of imprisonment.

12.Defendant, please stand up.  I have taken into account mitigation, your family background and your plea.  I have taken into account the appropriate starting point should be as set out in HKSAR v Chiu Suet Yee, Angel CACC 105 of 2010.  I take a starting point of 15 months.  However, I find there are aggravating factors that do exist in this case as described in two authorities, HKSAR v Chan Mei Yee, Carman CACC 447 of 2009 and HKSAR v Dang Van Tuan [2010] 1 HKC 176. 

13.I add 3 months for targeting victims in what I consider to be a crowded place, Mongkok, at about 7 pm.  I add a further 3 months for pickpocketing with another person, an accomplice.  Lastly, I add a further 9 months for the defendant’s persistent re-offending and incessant pickpocketing. 

14.Therefore, the starting point becomes one of 30 months’ imprisonment.  The defendant has pleaded guilty and is entitled to a discount of one-third.  After that discount is applied for this offence, the defendant is sentenced to 20 months’ imprisonment.