HKSAR v. Chan Fei Lung

DCCC 37/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 37 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences of theft which are described as pickpocketing offences.

2.The first offence occurred on 10 November 2016 in the afternoon in what is described as a crowded shopping centre in Sham Shui Po.  The defendant was seen to remove a mobile phone from the victim’s waist bag and then put it in his own bag before leaving.

3.The defendant was arrested shortly after.

4.The phone was valued at $3,800.

5.The defendant said he had stolen the mobile phone for his own use out of momentary greed.  He was then released on police bail the same day.  However, the defendant went on to commit a further offence on 21 November 2016.  A police officer, while conducting a patrol near a supermarket in Kweilin Street, saw the defendant remove a purse from the pocket of the back of a wheelchair occupied by an old lady.  The purse contained about $143 in money.

6.The defendant was again arrested.  He said he had stolen the purse because he had no money to buy food.

7.The defendant’s antecedents show he is aged 56. He is divorced, but has two grown-up children.

8.He has a criminal record showing a number of previous convictions:  a total of 26 previous appearances in court and a large number of offences of dishonesty.  I am told he has nine previous in respect of theft described as pickpocketing, and has been sentenced to imprisonment on a number of occasions for that, most recently in 2013 for the offence of theft, pickpocketing, a sentence of 16 months’ imprisonment; then, on 18 May 2015, for the same offence, a total of 18 months’ imprisonment.

9.In mitigation it is said the defendant has pleaded guilty and admitted the matters from an early stage.  All the stolen goods have been recovered, and the defendant regrets his actions and wishes to turn over a new leaf if possible.

10.As far as sentencing is concerned, the determination of sentence in cases such as this is determined by the Hong Kong case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  It is said that the correct approach is as follows:  theft by pickpocketing is seen as a serious offence.  A guideline sentence of 12 to 15 months after trial is therefore appropriate for a first‑time offender.  That is an immediate custodial sentence.

11.A number of aggravating features are set out which can increase that starting point, such as where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR, the race course, or crowded shopping areas.  Another factor of aggravation is where the accused is a repeat offender or a persistent offender.  There is a further aggravating factor in one of these cases, and that is that the offence is committed whilst on bail.  That is not set out in Ngo Van Huy, but it is in fact an independent aggravating factor.

12.If one takes these factors and applies them to the charges that I face, looking at the 1st charge that is described in the facts as occurring in a crowded location, and in addition to that there will be the defendant’s previous poor record; as far as the 2nd charge is concerned, it is a mean offence, stealing from an old lady, but it is not described as being in a crowded shopping area, so the aggravating factors in there are the defendant’s previous convictions and also the fact the offence was committed whilst on bail.

13.Neither of the offences is particularly sophisticated.  So the initial starting point I will adopt on both Charges 1 and 2 is one of 12 months’ imprisonment.

14.On the 1st charge, I add in the aggravating factors of the defendant’s previous convictions and also the fact that the offence was committed in a crowded shopping area.

15.That leads to a final starting point for sentence of 21 months’ imprisonment.

16.On the 2nd charge, again, a starting point of 12 months’ imprisonment; aggravated by the defendant’s previous convictions and the fact the offence was committed on bail again leads to a starting point for sentence of 21 months’ imprisonment.

17.After deduction for the defendant’s pleas of guilty in respect of each charge, the sentence is then reduced to 14 months’ imprisonment on each charge.

18.I must finally consider the question of overall totality.  The sentences could, of course, be served entirely consecutively, as they are separate offences.  However, I do consider that would lead to a sentence that would be excessive.  What I shall do is order that 7 months of the 2nd charge be served consecutively to the 1st charge, leading to an overall sentence of 21 months’ imprisonment for these two offences.